Vernon Insurance v. Glenn

40 N.E. 759, 13 Ind. App. 340, 1895 Ind. App. LEXIS 241

• Court: Indiana Court of Appeals
• Decided: May 16, 1895
• Docket: No. 1,487
• Status: Published

Opinions

Lotz, J.

The appellee sued the appellant on a fire insurance policy and recovered a judgment in the court below. The questions presented for consideration on this appeal arise under the assignment that the trial court erred in overruling appellant’s motion for a new trial. The complaint declared against the Vernon Insurance Company of Indianapolis, Indiana. The copy of the policy filed as an exhibit to the complaint discloses that the Vernon Life and Trust, Trading and Manufacturing Company of Indianapolis, Indiana, issued the policy. In this exhibit the corporation which issued the policy is also designated as the Vernon Insurance Life and Trust, Trading and Manufacturing Company of Indianapolis, and the Vernon Insurance Company of Indianapolis.

The record shows that the defendant voluntarily appeared to the action without the issuing or service of process, and filed a demurrer to the complaint, and also filed an answer in two paragraphs in which it designated itself as the Vernon Insurance Company. On the trial the plaintiff offered in evidence the original policy, which showed upoxx its face that it was issued by the Vernon Life Trust, Trading and Manufacturing Company of Indianapolis, Indiana. The corporation is also designated therein as the Vernon Insurance L. and T. T. and M. Company of Indianapolis and the Vernon Insurance Company. The defendant objected to the introduction of this evidence for the reason that it did not appear to be the same policy sued on, and because it did not conform to the allegations of the complaint. This objection was overruled, to which the defendant excepted. This ruling was assigned as one of the causes for a new trial. As a general rule when an action is predicated on a written instrument and there is a variance between the averments of the complaint and the exhibit, the exhibit controls in construing the pleading. The action was instituted and prosecuted upon the evident theory that all three of the names used to designate the corporation were the equivalents each of the other. They all had substantially the same meaning, and whatever apparent differences existed between them might be explained by extrinsic evidence. Names are used to designate persons and things, and are one of the means by which identification is established. Talbott v. Hale, 72 Ind. 1. The policy was a proper item of evidence, and the court did not err in its admission.

It is also insisted that there is a fatal variance between the averments of the complaint, in that the complaint declares against one corporation, and the proof is that another corporation issued the policy. We are of the opinion after examining the allegations in the complaint and the ans wer and of the evidence in the record, that one and the same corporation was meant with slightly varying names.

The other questions presented are the same 'as those determined in the case of Indiana, Ins. Co. v. Glenn, 13 Ind. App. 534, and were there decided against the appellant, and need no further consideration here.

Filed May 16, 1895.

Judgment affirmed.