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by left large holes and openings in said track | owing to its great height, weight, and length, at said place, thereby weakening the force said engine, while in motion, would not run and strength of the same. That said track | solid and firm, but would rock from side was defective in its construction in this: | to side, and, while thus rocking and lurching That at the place where plaintiff received his from side to side, great weight and pressure injuries said way and track was constructed would thus be placed suddenly and unevenly with a large curve therein to the south, upon said track, and said way and track was forming a semicircle, and said large curve | not solid and firm and secure, and the same or semicircle had in it a large number of would spread apart and suffer engines and short, double, or reverse curves, which said trains of cars to become derailed. That each short, double, and reverse curves were so and all of said defendants, on the day plaintiff short and the angles thereof so great that | received his said injuries, and for a long time large locomotives passing over said track at prior thereto, had known that said track and the said place could not adjust themselves way was defective and dangerous, and unsafe to said short, double, and reverse curves, for its employés to run an engine and train but at all times on account of said defect of cars over and upon said defective track; said engines were liable to jump from and but, notwithstanding said knowledge on their off of said way at said place, and endanger part, said defendants negligently failed to rethe lives of the employés of said company. pair the same, and thereafter negligently That the said way and track at said place continued to use and operate said defective was defective on account of the fact that the way and track in running engines and trains same was overlaid with old, rotten, and de- | over and upon it. Plaintiff says that ou fective cross-ties, which ties on account of the 17th day of March last he was ordered their rotten and defective condition would by his employer to run an engine with a not hold spikes driven therein, but that said train of cars thereto attached from New Alspikes, on account of the rotten and defective bany to Princeton, over and upon said track, condition of said ties, would draw out and as herein described; that while proceeding thereby cause said track at said place to on his way, without any knowledge on his spread apart, thereby derailing engines and part of any defects existing in said way and trains, to the danger of the lives of said track, and without any knowledge that said lessee's employés. That to render said track engine was too large, heavy, and long to be safe and secure, and to prevent the same | run and operated with reasonable safety over from being dangerous to said employés, it and upon said track, and at all times believe was necessary to have said track at said ing and relying upon the fact that said track place overlaid with sound and solid cross and way was reasonably safe and secure, and ties, with heavy iron or steel rails placed that said engine was safe to operate over thereon and firmly and securely fastened to and upon said way, but plaintiff says that by said ties with spikes driven into the same, reason of said defective way and track, as so as to firmly and securely fasten the same, well as by the use of said defective engine, and to prevent said rails from spreading as the same approached the place of said apart when the weight of engines and trains defective way and track, it jumped therefrom, passed over the same. That said lessee com and after jumping from and off said way and pany intrusted the repairing and keeping of track said engine ran on and along said said track and way in a safe and secure con track for a distance of 500 feet, and fell over dition and free from all dangerous defects and upon its side, whereby he was injured, therein to the said Winkler and Jeffers, as etc. section foremen, but notwithstanding the fact In the application of settled rules of pleadthat it devolved upon said Winkler and Jef- ing, we do not see how the complaint can be fers, as well as said lessor and lessee com sustained for want of a showing that the panies, to repair said defective way and plaintiff's injuries were the direct and proxitrack and to see that the same was safe, said mate result of some one or all of the defects defendants wholly failed and neglected to described. There is no complaint made in repair the same and put said way and track either paragraph of the condition of any part in a reasonably safe and secure condition. of the railroad track between New Albany That said way and track was defective in and Princeton, or of the unsuitableness of said place by reason of the fact that it had the particular locomotive to the use of any in it what is called in railroading a "low part of the track, except as it crossed a cerjoint." That as said engine passed over and tain valley in Dubois county on a fill alleged upon said low joint the wheels of said en to be 40 feet high and 600 feet long. We must gine were thereby suddenly and abruptly therefore assume that the track, except the precipitated downwards for a distance of 600 feet particularly described, was in good three inches, causing said engine to lurch condition and fit for the engine the plaintiff forward and sidewise, and to rock and careen was operating upon it. It will be observed that from side to side. That the engine used by the first paragraph of the complaint down to said lessee company on the said date was de- the last page contains not a single direct fective, in this: That said engine was too | averment of negligence, and is composed Jarge, heavy, and unwieldy, weighing 110 wholly of recitals, or of matter in inducement, tons, 40 feet long and 15 feet high; and, as introductory and explanatory, of how the accident happened. On the first page we are 1 "jumping from and off said way and track" informed that "wholly on account of the care-l at a point where the track was in a proper lessness and negligence of said defendants, as condition, and before it had reached the place nerein charged, said locomotive and train in where the track was defective. How, then, said county of Dubois, jumped from and off of does it appear that the settling of the earth, said way and track, and thereby produced the the reverse curves, the rotten ties, the low injuries hereiu complained of." It is proper at joint, the unwieldy locomotive, within the this point to note three things: (1) That the limits of the fill, or all of them combined, had plaintiff's injuries were caused by the locomo anything to do with the plaintiff's accident? tive jumping off the track; (2).a want of It is alleged that after the engine "jumped off averment as to what caused the locomotive to the way and track" it ran along the track leave the track; and (3) the negligence for 500 feet, and then fell on its side and relied upon, is to be "herein[after) stated.” injured the plaintiff. But it is not even Then follows an elaborate and minute de shown that it had passed within the bounds scription of five distinct specifications of de of the defective way and track before it fell fect in the condition of a particularly de over; neither is it in any way shown that the scribed and located part of the railroad and derailed engine would not have produced the track “at a place where there was a fill about same injuries in the same way if that part of 40 feet high and 600 feet long." The five the track and way complained of bad been in faults as set forth as constituting the general good condition; nor is it shown that the defective condition of said 600 feet of track injuries would have occurred if the locomoare: (a) The setting and receding of the tive had not become derailed before it reached earth from the filling up of the old trestle; the defective track. It is an established rule (b) the semicircle of the 600 feet and large of law in cases of this kind that recoverable number of short reverse curves therein, ren damages are confined to those which flow dering a large locomotive liable to jump off from injuries that are traceable directly to the track; (c) the ties were rotten; (d) the negligence charged against the defendant, there was a "low joint" in it; (e) the as the immediate and proximate cause. "The locomotive was too large, heavy, and un breach of duty upon which an action is wieldy. It is then alleged that all the defend brought must be not only the cause, but the ants knew of the defects enumerated above proximate cause of the damage to the plainfor a long time prior to the plaintiff's acci tiff. * • The proximate cause of an dent, and negligently failed to repair, and event must be understood to be that which, continued the use of said defective track. Up in a natural and continuous sequence, unto this point all the averments relate to the | broken by any new cause, produces the event, track as it existed on the fill 40 feet high and and without which that event would not have 600 feet long, and the large, unwieldy locomo occurred." Shear & Red. on Neg. & 26. Here tive; and the sum total of the negligence it is clear from the complaint that the derailcharged is the permitting of said portion of ing of the locomotive was the first, immediate, the track to get out of repair and, with | and originating cause of plaintiff's injuries, knowledge, neglecting to mend and continuing affirmed so to be by the plaintiff himself, and the use of the same.

it does not appear how the derailing of the It remains to be seen from the averments of locomotive came about, or that it was in any the complaint if these defects, or any of them, way due to the defendants' negligence. We thus suffered to exist in the particular portion | are, for these reasons, unable to sustain the of the railroad, were in any way connected first paragraph of the complaint. For cases with the plaintiff's accident. If not, no cause illustrative of the principles announced, see of action is shown. Having fully described City of Logansport v. Kihm, 159 Ind. 68, 64 said fill, and the condition of the track there N. E. 595; Baltimore, etc., Co. v. Young, 146 on, the knowledge of appellant and want of Ind. 374, 45 N. E. 479; Evansville, etc., R. R. knowledge of appellee, the complaint pro Co. v. Krapf, 143 Ind. 647, 36 N. E. 901; ceeds: "Plaintiff says that by reason of said | Pittsburgh, etc., Co. v. Conn., 104 Ind. 64, defective way and track, as well as by the 3 N. E. 636; Pennsylvania Co. v. Gallentine, use of said defective locomotive, as the same | 77 Ind. 322; Pennsylvania Co. v. Hensil, 70 approached the place of said defective way Ind. 569, 36 Am. Rep. 188; Roots Co. y. and track, it jumped therefrom, and after Meeker, 165 Ind. 45, 73 N. E. 253. jumping from and off said way and track said The second paragraph of complaint is bad locomotive ran on and along said track for a for the same reasons. Its averments are subdistance of 500 feet, and fell down and over stantially a repetition of the first. In the prefupon its side," whereby he was injured, etc. atory part of the paragraph it is alleged that It was as the engine approached the place' “wholly on account of the carelessness and where the defects existed, and not after it negligence of said defendants, as charged had entered upon it, that it left the track. herein, said locomotive and train, while on As before stated, there is no claim that any said lessee's track and way, in said county part of the way or track outside said fill was of Dubois, jumped from and off of said track in an improper condition, and the complaint and thereby produced and caused the injuries in its analysis comes to this: The plaintiff's complained of.” Then after describing the injuries were produced by the locomotive defective condition of the particular fill, as set forth in the first paragraph, the para- , otherwise provided by agreement indorsed graph proceeds: “On said 17th day of March, hereon, or added thereto, shall be void if while on his way as directed by the defend the insured now has, or shall hereafter make, ants, and while proceeding with due care and or procure any other contract of insurance, caution on his part, and as said locomotive * * . or if the buildings insured herein, approached said fill, or embankment, the same or any of them, now are, or shall hereafter beon account of all the defects as herein come vacant or unoccupied, or occupied by tencharged, jumped from and off of said track ants. * * *" We assume, as stated by appeland way, * * * producing his injuries lant in his brief, that the second paragraph of complained of." For the reasons given in the complaint was abandoned and the trial was had ruling on the first paragraph, we hold the upon the first paragraph, to which a demur. second paragraph also insufficient.

rer was overruled. There were nine paraNumerous other questions are presented, graphs of answer, but the controlling issue which are not likely to arise in another trial, was formed on the fifth. This answer was and for that reason left unconsidered.

in effect that it was provided in said policy Judgment of the Crawford circuit court re of insurance-a copy of which is filed, etc.-versed, and cause remanded, with instruction that the entire policy, unless otherwise to sustain the demurrer to each paragraph of agreed to and indorsed thereon, shall be the complaint.

void if the building insured now is or shall

hereafter become vacant or unoccupied; that MONTGOMERY, J., concurs in the result. after the issuance of said policy the said insur

ed building became vacant and unoccupied, and.

was vacant and unoccupied at the time it (166 Ind. 239)

was burned. It is also alleged that the 'vaOHIO FARMERS' INS. CO. V. VOGEL. cancy and unoccupancy was without the (No. 20,777.)

knowledge and consent of the defendant and (Supreme Court of Indiana. Feb. 23, 1906.)

without an agreement indorsed on the policy, 1. INSURANCE-PROOFS OF Loss-WAIVER.

and defendant was wholly ignorant of the Where an adjuster representing an in fact that said building was vacant and unsurance company visited the scene of loss, and occupied at the time of the fire. on investigation refused payment and denied all

To this fifth paragraph of answer appellee liability under a policy, proof of loss was waived.

replied in substance as follows: He admits [Ed. Note.For cases in point, see vol. 28, that there was in the policy a stipulation or Cent. Dig. Insurance, 88 1391, 1392.)

condition that the policy should be void if 2. SAME-CONDITIONS OF POLICY-WAIVER. the insured building was then or should

Where an insurance company accepts a thereafter become vacant or unoccupied, or premium on a fire policy, which provides that it shall be void if the building now is or shall

occupied by tenants, and if the hazard be inhereafter become occupied by a tenant, with creased by any means within the insured's knowledge that at the time of the issuance of control, unless otherwise provided by agreethe policy the building was occupied by a ten

ment indorsed on the policy. And it is furant, it cannot assert the invalidity of the policy for breach of that condition,

ther averred that the house so insured was at (Ed. Note.-For cases in point, see vol. 28, the time of the execution of said insurance Cent. Dig. Insurance, 88 1041-1055.]

contract occupied by a tenant, which fact

was then and there fully known by defendWhere a fire policy contained a provision ant, and the same was insured to be occupied that it should be void if the building insured

by a tenant and as a tenement house; that a became unoccupied, and the policy was issued with knowledge that the building was occupied

general custom prevailed with the defendant by a tenant and was to be used as a tenement, and other insurance companies doing busithe removal of the tenant without the knowl ness in the community to grant a permit for edge of the insured four hours before the fire

insured buildings to be temporarily vacant did not render the policy void.

and unoccupied for a period of 30 days, durAppeal from Circuit Court, Scott County;

ing changes of tenants; that the contract Willard New, Judge.

was entered into with full knowledge and Action by Henry Vogel against the Obio

with reference to such custom; that the inFarmers' Insurance Company. From a judge

sured house continued to be occupied by ment in favor of plaintiff, defendant appeals.

said tenant until 5 o'clock p. m. of the day Transferred from Appellate Court (73 N. E.

it was destroyed, with the full knowledge 612. 75 N. E. 849), under section 1337, Burns'

and consent of the defendant, at which time Ann. St. 1901. Affirmed.

the said tenant, without any order or direcGuilford A. Deitch and Seba A. Barnes, tion from the plaintiff, and without his knowlfor appellant. W. T. Branaman and O. H. edge or consent, removed therefrom; and Montgomery, for appellee.

four hours thereafter, and before plaintiff

bad learned of such removal, or had had HADLEY, J. Appellee sued appellant to reasonable time in which to learn of it, and recover damages for the loss by fire of a while he was wholly ignorant of the fact, dwelling house, insured by the latter. The the same was, without plaintiff's fault or policy of insurance contained a condition in knowledge, destroyed by fire, as alleged in these words : "This entire policy, unless the complaint. It is further alleged that the

76 N.E.-62

3. SAME.

risk was not increased by plaintiff at any , App. 454, 48 N. E. 263. The demurrer to the time by any manner or means. Plaintiff's complaint was properly overruled. demurrer to the fifth paragraph of answer was 2. The reply to the fifth paragraph of anoverruled, as was also the defendant's demur- | swer presents a more interesting question. rer to the plaintiff's reply. Verdict and judg. It involves the construction of the vacancy ment for appellee. Appellant's assignment. clause in the policy. The contract provides: calls in question the overruling of his de | “This entire policy, unless otherwise provided murrers and of his motion for a new trial. | by agreement indorsed hereon, • • • 1. The only objection presented to the com shall be void

if the building insured plaint is "that there is no sufficient allega- herein now is, or shall hereafter become, tion of facts to show a waiver of proofs of vacant or unoccupied, or occupied by a tenloss." Relating to this subject the complaint ant.” The reply avers that at the time of the avers "that within 60 days after said fire insurance the house was occupied by a tenplaintiff notified defendant of the same and ant, and that the defendant knew it, and of his said loss, and defendant's agent and insured the house to be occupied by a tenant adjuster came and looked at the premises and as a tenement. The demurrer admits and investigated said loss, and thereupon these averments to be true. Therefore to refused payment of the same, and denied all overthrow the ruling of the court we must ìiability under said policy, and thereby hold that the policy was void from the movaived the written notice and sworn proofs i ment of its execution, and that appellant, of the loss provided for in said policy in case having knowingly accepted and retained ap.of damage or destruction of property by fire, pellee's money, surrendered under an honest and that the plaintiff has performed on his | belief that he was getting three years' valid part all the conditions of said policy of in insurance for the sum parted with, neverthe surance." The principle is old and thorough- less is entitled to his judgment for cost. ly established that, when a party repudiates This is not in accordance with equity and a contract and denies a liability under it, the good conscience. It remains to be seen if it performance of conditions precedent, such as is sanctioned by the law. We have this notice, demand, tender, and the like, are anomaly. On the one hand we have a writ. waived on the ground that the law will not ten instrument of insurance, containing a require a thing to be done which the party | provision that it shall be void if the house entitled has excused, or given notice that it insured shall then or thereafter be occupied will be unavailing. This principle applies to by a tenant; on the other, we have one party insurance as well as other contracts. Giving asserting, and the other admitting, that when effect to this doctrine, it may be considered the instrument was executed both parties settled in this state that when an insurance knew the house was then occupied by a tencompany has been notified of a loss under a ant, and in the execution of the policy both policy issued by it and it sends an adjusting intended that the house should during the life agent to inquire into the loss, and such agent, | of the policy continue to be occupied by a while engaged in or at the conclusion of such tenant. It is plain, therefore, that if the business, refuses payment and denies all policy is enforced according to its terms the liability of the company under the policy, court will be found making a contract for the such action by the adjuster, if within the parties very different from the one they time stipulated in the policy for the making made for themselves. This the law never of formal proofs of loss, will be held as a does. Its office is to enforce, not to make, waiver of proof of loss by the company. It contracts. There is nothing mysterious or pewas said by this court in Ætna Ins. Co. v. culiarly venerable about the ordinary insurShryer, 85 Ind. 362: "There is much di- | ance policy, with its long list of provisions and versity of opinion as to whether an adjuster conditions of defeasance. All these and singuhas authority to waive a preliminary proof. lar must be construed, like similar provisions in It would seem that the better reason is with other written instruments, upon sound and wellthe cases which hold that he has; for a como established principles-principles that suppany that sends an agent to ascertain the na- port the integrity of the contract, and that ture, cause, and extent of the loss and em forbid an insurer from taking the money of ploys him in a particular line of duty, may another for a policy, which he knows at the well be deemed to have invested him with a time of delivery contains a provision which, ungeneral authority in all such matters." See, der the facts, will enable him to avoid it, if a also, Germania Fire Ins. Co. v. Pitcher, 160 loss occurs. Such provisions in insurance Ind. 392, 64 N. E. 921, 66 N. E. 1003; Bowlus policies have been before the courts a great v. Phenix Ins. Co., 133 Ind. 107, 120, 32 N. E. many times, and so far as we have observed 319, 20 L. R. A. 400; Home Ins. Co. v. Syl | courts have everywhere, in the absence of vester, 25 Ind. App. 207, 57 N, E. 991; Ger fraud, refused to enforce a condition of man Fire Ins. Co. v. Seibert, 24 Ind. App. 279, forfeiture in favor of an insurer who has 56 N. E. 686; Ft. Wayne Ins. Co. v. Irwin, 23 knowledge of the condition broken when he Ind. App. 53, 54 N. E. 817; Indiana Ins. Co. V. delivered the policy. One reason is this: Pringle, 21 Ind. App. 559, 52 N. E. 821 ; Home having accepted a premium to take the risk Ins. Co. v. Boyd, 19 Ind. App. 173, 49 N. E. 285; of indemnifying the insured against loss, it Western Assurance Co. v. McCarty, 18 Ind. is incompatible for the insurer to attach to


the policy a condition that will from the be- , forfeiture was annexed to the insurance ginning relieve him of that risk. Another contract, as it was agreed upon. reason is that, although so expressed in the | This perhaps should end the case as preinstrument, a violation of such condition sented by the demurrers, for the answer does not in fact make the policy void, but is wholly based on broken conditions and if voidable only, at the election of the insur there were no conditions there can be no ance company (Excelsior, etc., Ass'n v. Rid breaches. Appellant, however, earnestly dle, 91 Ind. 84), and when an election has urges that the condition against vacancy been once exercised the company will be con was not waived and was broken. For confined to its choice. Thus, when appellant venience we repeat the words of the policy learned that the house was occupied by a that give rise to this controversy: “This entenant, it was free to choose between a re- tire policy, unless otherwise provided by fusal to issue the insurance because of the agreement indorsed hereon, . * . shall occupancy, or to waive the character of the be void, . * if the building insured occupancy and undertake the risk for the herein now is, or shall hereafter become, sum proposed. In short, it had the right to vacant or unoccupied, or occupied by a tenelect between two inconsistent courses, and, ant.” It may be noted that the prohibitory having chosen one, it will be excluded from clauses against vacancy and occupancy by all rights and benefits of the other. In such a tenant stand together, separated only by case, in the absence of fraud, it will be con the word "or," in a form of policy that we clusively presumed that the insurer, while have seen is suitable and appropriate only he keeps the premium, waives the incon for a contract of insurance on a house oc. sistent provision. Menk v. Home Ins. Co., cupied by the owner. As a further reason 76 Cal. 51, 14 Pac. 837, 18 Pac. 117, 9 Am. why both conditions were intended to apply St. Rep. 158; Caldwell y. Fire Ass'n, 177 Pa. to the same sort of policy is that the oc492, 35 Atl. 612; German Ins. Co. v. Shader cupying owner is in the absolute control of (Neb.) 93 N. W. 972, 60 L. R. A. 918; Hunt | the vacancy. If he wants to vacate, it is a v. State Ins. Co. etc., 66 Neb. 121, 92 N. W. matter of convenience that he may arrange 921; Continental Ins. Co. v. Cummings (Tex. with deliberation and in accordance with Sup.) 81 S. W. 705. To same effect see his best interest, and so may take plenty of Farmers' Ins. Co. v. Reavis, 163 Ind. 321, time to see the insurance agent and pro70 N. E. 518, 71 N. E. 905; Havens v. Home cure his indorsement of a vacancy permit Ins. Co., 111 Ind. 90, 12 N. E. 137, 60 Am. upon the policy. A tenant has always the Rep. 689; Western Assurance Co. v. McAlpin, right to "move out,” with or without notice 23 Ind. Apr. 220, 55 N. E. 119, 77 Am. St. to his landlord, at the middle or end of his Rep. 423; Hanover Fire Ins. Co. v. Dole, 20 term; and it is very apparent that the landInd. App. 333, 50 N. E. 772. Within these

lord has not the control, or perfect knowlprinciples and under these authorities appel

edge of the vacancy of his tenement, as he lant's policy in the hands of appellee, which

| has of his own dwelling. As to the latter he was untainted by the latter's fraud, so far as | may, because he knows, reasonably and the record discloses, should be read and en.

safely contract that he will not, on a penalforced precisely as if said condition had

ty, vacate without first obtaining the comnever been in it.

pany's indorsed consent; while in the formThis leads us to another consideration. The er case it would be neither reasonable nor condition against occupancy by a tenant is safe, for want of notice of removal, to confound as one of a class or group of condi. tract that his policy should be void, the tions, separated by the word “or," and ap

moment his tenant should vacate.. pears in a policy executed upon a printed But, conceding that the condition against form, which manifestly from the very vacancy should be considered as embraced phrase we are considering, was designed in the insurance contract, appellant's case for exclusive use in insuring houses to be would not be improved. We have seen occupied by the owner, and not designed, that the agreement between the parties was or even appropriate, without alteration, for for the insurance of a house to be occupied use in insuring houses to be occupied as by tenants. The term of insurance was tenements. It is plain that the group of three years. The better reason and clear conditions referred to were suitable and in weight of authority hold to the doctrine that tended to be incorporated in policies issued a condition against vacancy and unoccupanto occupying owners. It is equally plain cy, usually found in insurance policies, must that all were not suitable, or intended to be be construed with relation to the character, incorporated in policies issued for tenement | or class of property, to which it relates; that occupancies. The policy in suit is in form, it should not have the same interpretation of the former class, but the contract the when applied to churches and schoolhouses, parties made is of the latter class. And as when applied to stores and dwellings, nor how shall we know what conditions, if any, the same when applied to houses to be ocare a part of it? We are certain that one cupied by the owner and to houses to be appearing in the policy against occupancy | occupied by tenants. Parties, when negoby a tenant is not, and we see no possible tiating insurance on schoolhouses, know, at ground for presuming that any condition of the time, because common knowledge, that

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