
    Milwaukee Fire Insurance Company v. Todd.
    [No. 4,429.
    Filed June 3, 1903.
    Motion to modify mandato overruled January 13, 1904.]
    
      Insurance. — Ownership of Property. — Burden of Proof. — In an action on a fire insurance policy the burden is upon the insured to allege and prove that he was the owner of the property at the time of the loss. p. $18.
    
    
      Same. — Ownership of Property . — Special Finding. — The ownership by plaintiff of the insured property is a material independent fact essential to a recovery on a fire insurance policy, and the absence of a statement of such ownership in the special finding will be treated as indicating that the court did not find the existence of such necessary fact. p. $18.
    
    
      Same. — Ownership of Property. — Special Finding. — A finding that defendant at the date of the issue of the policy “was, and still was, a corporation,” etc., and “at that date it was, and still was, doing business in this State,” and “at the date mentioned plaintiff was the sole owner” of the insured property, can not be construed as a finding that plaintiff was the owner of the property at the time of the loss. pp. $16, $18.
    
    From Howard Superior Court; Hiram Brownlee, Judge.
    Action by Lemuel S. Todd against tbe Milwaukee Fire Insurance Company. From a judgment for plaintiff, defendant appeals.
    
      Reversed.
    
    
      S. N. Chambers, S. O. Pickens and C. W. Moores, for appellant.
    
      G. H. Gifford, G. J. Gifford, C. H. Gifford and L. B. Nash, for appellee.
   Black, J.

The appellee sued the appellant upon a policy of fire insurance on a metal building located on a certain lof in the town of Danville, and oh a laundry plant contained therein. Ho question is made upon the pleadings. The court tried the cause and rendered a special finding, in 'substance as follows: On May 6, 1901, the appellant was, and it still was, a corporation duly organized under the laws of the state of Wisconsin,, and has duly complied with the laws of Indiana. At that date it was, and it still was, doing business in this State, and Miles & Easley were its agents at Danville, Indiana, for the purpose of writing-fire insurance upon property in that town and its vicinity, and they still were such agents. At the date mentioned, the appellee was the sole owner of a’ laundry plant at that town, consisting of a metal building and certain described fixtures, machinery, and personal propérty, used in the operation of the plant and being within the building; the entire property being at the time used as a laundry. The appellee was not the owner of the real estate upon which the building and machinery were situated, but held it by virtue of a written lease from the owner thereof, duly executed and recorded, expiring on November 1, 1903. Among its provisions was the following: “Lessee herein reserves the right to remove any buildings erected by him on said property at or before the expiration of the lease.” The building and property therein were placed on the real estate by the appellee. On May 6, 1901, one Miller was in possession of the laundry plant, and was operating it as a laundry. He so held the property under a written lease and contract executed to him by the appellee February 1, 1901, for one year. This lease contained a provision as follows: “Second party [Miller] agrees to pay the sum of $5 per month in advance from the taking possession until April 1, 1901, after which the said party agrees to pay the sum of $12 in advance each month during the continuance of this contract, and said party agrees to use said property well and keep the same in good repair, barring natural wear and decay; and it is further agreed that said party is to have the refusal of said property in case he desires to purchase the same during the continuance of this contract; and in case of failure to pay rent in advance second party is to give peaceable possession at once, and said second party is to give peaceable possession of said laundry at the expiration of his tenancy without legal notice.5” It was afterward agreed that if Miller should purchase, he would have credit upon the purchase price for any rent or insurance he might pay. Miller never concluded to buy, no price was ever agreed upon, and no sale was ever consummated; but Miller-continued in possession under his contract, and continued to pay rent. Miller and the agents, .Miles & Easley, resided at Danville, and the appellee resided at Tipton, Indiana. May 6, >1901, the appellee made application to Miles & Easley, as the appellant’s agents, for insurance against loss by fire “upon the property herein-before found,” and the appellant, in consideration of the sum of $2.0 at the time paid to Miles & Easley, as such agents, by the appellee, duly executed and issued to the appellee its policy of insurance upon said property, insuring it against loss by fire for one year from that date. The policy insured “the metal building found” for $250, and “the machinery -found” for $550. The policy was left in .the safe of Miles & Easley at Danville, who at once made report of the issuing of the policy to the general offitíe of the appellee at Milwaukee. May 8, 1901, the appellee refused to carry said risk and directed its agents to cancel the policy. The agents, pursuant to spch instructions, did, May 25, 1901, mark the policy canceled, and returned it by mail to the general office, where it was destroyed. The policy contained a provision as follows: “This policy shall be canceled at any time at the request of the insured, or by the company, by giving five days’ notice of such cancelation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned or surrendered; this company retaining the customary short rate, except that when this policy' is canceled by this company by giving notice, it shall retain only the pro rata premium.” No notice was ever given the appellee by the appellant of the cancelation of the policy, and no part of the premium paid by him was ever returned or offered to be returned to bim, except as hereinafter stated. Soon after May 25, 1901, Miles & Easley informed Miller that the appellant would not carry the risk, and that the policy had been canceled, and' that he could call and get the premium paid, but Miller did not inform the appellee of the notice to him. The contract of insurance contained the following: “The entire policy, unless provided by agreement indorsed thereon or added thereto, shall be void if the interest of the insured be other than unconditional and soie ownership.” The policy contained no agreement or statement of conditional ownership indorsed thereon or-added thereto. At the time the application was made and the policy was issued, Miles & Easley know that the appellee did not own the real estate upon which the property insured was situated, and that ho occupied the same under, a lease which expired in 1903, and that Miller was in possession of the property under a lease to him from the appellee. On August 4, 1901, “the property insured as found” was totally destroyed by fire. The metal building was of the value of $400, and the machinery insured xvas of the value of $600. August 6, 1901, Miles & Easley procured a draft for $20 and mailed it to the appellee at Tipton, Indiana; but the appellee refused to accept it, and returned it by mail. The appellant at the time the fire was in progress, and at all times since, denied any and all liability on account of the policy. August 6, 1901, the appellee notified the appellant of the loss and requested blanks to make proof of loss. The appellant failed to furnish said blanks, and thereupon the appellee made out proof of loss and forwarded the same to the appellant, and the latter received the proof, which was in substantial compliance with the conditions of the policy. The court further found that by reason of said fire the appellee has sustained damages in the sum of $1,000, and that no part of the sums stipulated in the contract of insurance has been paid, and that the same is due and owing. The court, as conclusions of the law upon the facts so found, declared the law to he with the appellee, and that he ought to recover of the appellant $800.

Counsel for appellant suggest a number of objections to the conclusions of law; one objection insisted upon being that there is no finding that the appellee was the owner of the insured property at the time of the loss and damage by fire. It not only devolved upon the appellee to allege in his complaint (which he did) that he was the owner at the time of the loss, but also the burden of proving his ownership at that time was upon him; and for his recovery it was necessary that the court should find, and in some form state in its special finding that he was then the owner, this being a material, independent fact essential to a recovery, the absence of a statement of which in the special finding is to be treated as indicating that the court did not find the existence, of such necessary fact. Indiana, etc., Ins. Co. v. Bogeman, 4 Ind. App. 237; Western Assur. Co. v. Koontz, 17 Ind. App. 54; Western Assur. Co. v. McCarty, 18 Ind. App. 449; Insurance Co. v. Coombs, 19 Ind. App. 331.

While counsel for appellee do not contend against the rule of law as above stated, they insist that from the facts found the irresistible legal conclusion can be drawn that the appellee was the owner at the time of the loss. We can not so construe the finding. Whether-the language be considered with regard to the usual signification of the words, or with reference to the meaning of the trial court as indicated by a comparison of the various portions of the finding with each other, it can not be said that the finding shows that the court found -as a separate, independent fact that the appellee was the owner of the property at the time of its destruction by fire. Neither can it be said that the finding contains facts constituting evidence of such ownership.

Other objections were urged against the court’s conclusion,. which, however, need not be examined.

Judgment reversed. Cause remanded, with, instruction to state a conclusion of law in accordance with the foregoing opinion.  