The Celina Mutual Casualty Co. v. Baldridge , 213 Ind. 198 ( 1937 )

ON PETITION FOR REHEARING. After the filing of the opinion in this case, appellee filed a motion to dismiss the appeal upon the ground that the judgment appealed from is not final. 5, 6. Prior to the decision of the case, appellee filed a petition for and procured an extension of time to file briefs. Petitions for extensions of time to appellees must show that all motions to dismiss have been filed. Appeals will not be dismissed upon motion of parties over whom the court has acquired jurisdiction after the decision of the case, nor after the party has procured an extension of time to file briefs on the merits.

It is contended by appellee that the question is jurisdictional, and that, unless the judgment appealed from is final, the court obtains no jurisdiction. In the cases 7, 8. cited to support this view, it clearly appears that the judgment was not final, and that all of the parties to the judgment or record had not been brought before this court.Champ et al. v. Kendrick, Trustee (1892), 130 Ind. 545, 30 N.E. 635; Michigan Mutual Life Insurance Co. v. Frankel (1898), 151 Ind. 534, 50 N.E. 304; Enmeier et al. v. Blaize etal. (1932), 203 Ind. 303, 179 N.E. 783. It is clear that a decision of this court is not binding upon one who is not brought before the court by notice so that the court can acquire jurisdiction of the person, and, as to him, the proceedings are void. But a ruling of this court is not void as to parties before the court. This court has jurisdiction to determine whether a judgment appealed from is final as between the parties before it, and, unless the question is timely presented, it is waived, and the judgment is deemed final. White v. White (1935),208 Ind. 314, 194 N.E. 355, 196 N.E. 95.

Appellee's contention that the judgment is not final is based upon the fact that appellant filed below what is denominated "ninth paragraph of answer," which begins: "Defendant 9, 10. Celina Mutual Casualty Company for its ninth and last paragraph of answer to plaintiff's complaint answers by way of cross-complaint and says that." The answer then sets up the facts concerning the issuance of the policy, and alleges that the defendant immediately cancelled the policy and returned the premium, and that the plaintiff accepted the return and surrendered the policy. There is a prayer that the policy be ordered cancelled and declared void. At the time the action was brought, and at the time this pleading was filed, the policy in question had expired, as shown by the pleading. The facts alleged constitute an answer, and the pleading was treated as an answer in the instructions of the court. As suggested by appellee, "It is not the name but the facts stated that determine the character of a pleading." The verdict and judgment in favor of appellee effectually barred any possibility of a recovery by appellant in another action upon the facts which were the basis of the pleading in question. The verdict and judgment finally disposed of the entire controversy.

Appellee has filed a petition for rehearing in which it is vigorously contended that this court has misapprehended or misunderstood the facts in the case. It is said in the 4. brief: "This court erred in holding and deciding that the evidence in this cause shows as a matter of law that on the 19th day of July, 1930, appellee had a policy of insurance in full force and effect with the American States Insurance Company." It is then asserted that this "was a question of mixed law and fact." The brief then quotes from the original opinion as follows: "It appears without controversy that Mayme Brishaber, who wrote insurance as a `sideline,' was licensed and authorized to sell insurance for the American States Insurance Company, the appellant, and other companies." It is then asserted that: "The evidence as appears from the record conclusively shows that Mayme Brishaber was not licensed to sell insurance for the American States Insurance Company for the year 1930." This is urged in support of the contention that the court erred in deciding that there was a policy in force, presumably because Mrs. Brishaber had no authority to act for the company. The words "licensed" and "authorized," as used, are synonymous. But, even if she had no authority to act, but acted, and the company acquiesced and issued the policy, it was bound, and the policy was in effect. Mr. Gallahue, the president of that company, testified: "In 1930 we did not renew her license as an agent as she stated she thought she could get a license with another company. We said that we would let her place policies with us until she could get another connection. We cancelled her out in the fall of 1930 because she switched her business to another company during the summer of 1930." It is not disputed that Mrs. Brishaber ordered the policy from the company or that it was delivered to her. She testified that she had it in her possession, but that she did not remember whether she delivered it to appellee. Appellee testified that it was delivered to him, and this is not disputed. Complaint is also made of the following statement in the opinion: "On July 2, 1930, at his" (appellee's) "request, his policy was renewed in the American States Insurance Company. Shortly thereafter a policy of the American States Insurance Company was delivered to him, which he continued to hold in his possession until after the collision which destroyed his car on the 25th of November following." It is asserted that there is evidence tending to show that the policy in the American States Insurance Company was issued without request, other than that Mrs. Brishaber "sent his file card into the Indianapolis office," and the policy was sent direct by mail from the home office, and that at the time Mrs. Brishaber made the contract with the Celina Mutual Casualty Company on July 19th, she had no notice from the American States Insurance Company that a policy had been written by it for appellee. It is of no importance whether an application or merely a file card was sent to the company, or whether Mrs. Brishaber knew whether the policy was delivered. But the evidence shows without dispute that appellee requested the renewal; that the policy was issued and delivered to him; and that Mrs. Brishaber's records showed it in force from July 2nd until she made a notation of cancellation on July 19th. She testified positively that she had the policy in her possession, and that she "cancellel it out" in order to write the insurance in the Celina Casualty Insurance Company. It is also suggested that the American States Insurance Company had no record of any application being made for the issuance of its policy. It is undisputed that that company issued the policy, and that its record showed the issuance of the policy.

The policy contained a provision that, if the premium was not paid at the home office on or before August 1, 1930, the policy should lapse. Whether this provision was effective to strike down the policy after August 1st cannot be decided in a case in which the company is not a party. It is clear that it was effective until the first of August. The president of the company testified as follows, with reference to notice upon the lapsing of a policy: "It was the natural conclusion that if a person made a payment and the agent doesn't pay it to the company and this is cancelled, the policy is cancelled by registered mail, the assured advises the company. In this particular case after the policy lapsed we sent out a registered cancellation notice and we didn't have any inquiry from Mr. Baldridge that the premium had been paid and we assumed that it hadn't." Whether payment to the agent was effective to continue the policy in force, or whether there were other defenses that the company might have made against the policy, could only be determined in an action between appellee and the American States Insurance Company. But the evidence is clear and unmistakable that appellee believed the policy was in effect up to and including the date of the accident, and there can be no question that he intended the premium he paid to be in payment for that policy. Pursuing his belief and contention, he brought a suit against the company, alleging in his complaint that the policy was at all times in full force and effect; and, coerced by the pending action, the company paid him $150. Neither Mrs. Brishaber nor any one else had authority to surrender or cancel appellee's right to insist as against the American States Insurance Company that his policy was in full force and effect from the day it was issued to and including the day of his loss. He believed and asserted that it was so in force, and in a trial of his case against that company it might have been adjudicated to have been in force. It is clear that he was not making any claim that he had a policy with appellant, and did not know that there was anything to suggest such a thing until after the accident. It would be unconscionable under the facts to permit him to successfully contend here that "this contract" (with the American States Insurance Company) "was never completed so as to become an effective contract," and "that there was a meeting of the minds" (between appellant and appellee) "on July 19th is borne out by the evidence." There is not one scintilla of evidence that appellee ever considered the question of insurance with appellant on July 19th, or on any other date until after his property was destroyed. There is ample undisputed evidence that he told Mrs. Brishaber "to renew" his policy. The one he had was with the American States Insurance Company, and a renewal would naturally imply another with the same company; that she did renew the policy in the same company; that it was delivered to him, and that he held it until after the accident; that when he paid the premium, he must have intended it to pay for the policy he had, since he knew of no other; that he continued to believe and assert that he was insured by the policy; that he never authorized Mrs. Brishaber to get any other or different policy, and only authorized her to procure one policy; that he never was advised by her that she had any thought of cancelling the policy which she had procured for him, and insuring him in the appellant company. His mind could not have met with appellant upon the question of an insurance contract on the 19th of July, or at any other time before his property was destroyed. Mrs. Brishaber's authority to procure insurance for him was exhausted when she procured the policy in the American States Insurance Company, as pointed out in the principal opinion. A more careful examination of the evidence should convince appellee that the court has not misapprehended the facts.

The motion to dismiss the appeal is dismissed, and the petition for rehearing is denied.