On Petition for a Rehearing.
Hackney, J.The petition for a rehearing advances no question not considered in the original hearing, but the apparent earnestness and sincerity of counsel in claiming that we erred in construing the policy in this case to be similar to those in other cases cited by us upon the question of the burden of proof, induces us to add to what was said in the former opinion.
The appellee’s policy insured for an amount not to exceed $4,000, but provided that its payment should consist in and not exceed four-fifths of the sum collected from one assessment of the members. This, it is insisted, is not an insurance for a definite sum, and should be distinguished from the cases of Houghton, Knight and Werner, cited by us.
In the first of those cases, and substantially so in the others, the policy insured for “$1,000, or so much thereof as may be realized from one assessment, not exceeding $1,000.”
In either policy the maximum sum was stipulated, and its payment depended upon the uncertain amount collected from an assessment, but in either case no more should be paid than the collection for that purpose. If, in principle, there is any difference in the policies, we do not yet comprehend it. That there are mere verbal differences, is conceded. But if there should be found a difference in the effect of the policies as to the princi*429pie or theory upon which the insurance should be paid, we discover no room for distinction in the application of the principle of law announced in the cases cited.
In the Houghton case, it was said, at p. 288: “It would be difficult, if not impossible, for appellee to know how many members of the association there are. The books of the association doubtless show the number. These books are in the possession and custody of the officers of the association. If the members are such, in number, that an assessment would not produce $2,000, that fact is known to the officers of the association, and they should set it up in an answer, and make good the answer by proof, as they readily could if true. This, we think, is the reasonable rule to apply in a case like this, and especially where, as here, the insurer contests the claim upon other grounds, and utterly refuses either to pay or make an assessment.”
Why this rule is not applicable to the case in hand we are not advised by counsel further than in the claim that in the present policy no definite insurance is provided, while in the case from which we quote a definite sum was insured. The distinction, if it existed, would make no difference in the application of the rule of 'law.
It is again insisted that the waiver could not obviate the necessity for a finding, in the special verdict, of such facts as disclosed in the appellee an insurable interest. We held that the waiver had the effect to limit the issue to the amount of recovery, and there is neither reason nor authority for the contention that the jury should return facts outside the issue submitted to them. Belshaw v. Chitwood, 141 Ind. 377.
The waiver became a fact in the case, of which the court was placed in possession by the record, and its legal effect was for the court. If the jury had been required to return any fact with reference thereto, it could *430have been but the statement of counsel, which, from the appellant’s standpoint, would have been but evidentiary. The conclusion of the court could not have been aided by it, and being but evidentiary, it had no proper place in the verdict.
Filed May 28, 1895.The petition is overruled.