Indiana Live Stock Insurance v. Bogeman

30 N.E. 7, 4 Ind. App. 237, 1892 Ind. App. LEXIS 100

Opinion

Black, J.

The appellant by its policy engaged to insure the appellee against loss by death of his certain stallion, to a specified amount, for the period of one year from the 16th of April, 1890.

The appellee’s complaint upon this policy stated the death of the horse on the 15th of July, 1890. It showed that the appellee was the owner of the horse at the date of the contract of insurance, but it wholly failed to show that he owned it or had any interest in it at the time of its death. Therefore, the complaint lacked a material and necessary averment. Aurora, etc, Ins. Co. v. Johnson, 46 Ind. 315; Home Ins. Co. v. Duke, 75 Ind. 535; Ætna Ins. Co. v. Black, 80 Ind. 513; Ætna Ins. Co. v. Kittles, 81 Ind. 96; Phoenix Ins. Co. v. Benton, 87 Ind. 132; Phoenix Ins. Co. v. Rowe, 117 Ind. 202; Traders Ins. Co. v. Newman, 120 Ind. 554.

Filed Feb. 4, 1892; petition for a rehearing overruled Feb. 20, 1892.

The action of the court in sustaining a demurrer to the second paragraph of answer is assigned as error. As the complaint was insufficient, we must sustain the appellant’s contention that, for this reason, it was error to sustain the demurrer to the answer. Batty v. Fout, 54 Ind. 482; Corporation of Bluffton v. Mathews, 92 Ind. 213.

The judgment is reversed, and the cause is remanded, with instructions to sustain to the complaint the demurrer to the second paragraph of answer.