Hoosier Ins. Co. v. Ogle, 471A72

Citation276 N.E.2d 876,150 Ind.App. 590
Decision Date30 December 1971
Docket NumberNo. 1,No. 471A72,471A72,1
CourtCourt of Appeals of Indiana
PartiesHOOSIER INSURANCE COMPANY, Appellant (Defendant Below), v. James P. OGLE, Evelyn Ogle, Appellees, (Plaintiffs Below)

Don M. Robertson, Bunger, Harrell & Robertson, Bloomington, for appellant.

Richard L. Wilder, Bloomington, for appellees.

SULLIVAN, Presiding Justice.

The cause below was tried upon plaintiffs' (Ogles') amended complaint in two pleading paragraphs, the first of which may be generally construed as a complaint for breach of a fire insurance policy contract alleging defendant's failure to pay the $4000 face amount following plaintiffs' claim for loss sustained August 12, 1967. The second paragraph of complaint alleged oppressive and malicious conduct on the part of defendant with reference to the same transaction and occurrence and claimed punitive damages of $10,000. The defendant (Insurance Company) contended alternatively that (1) no contract of insurance existed between the parties, and (2) even if such contract existed, it was terminated or rescinded.

The court found for the defendant Insurance Company upon pleading paragraph 2--the claim for punitive damages--but further found 'that the defendant should be estopped from asserting a forfeiture of the insurance coverage alleged in Paragraph I of the plaintiffs' amended complaint' and adjudged damages of $4000 on pleading paragraph 1.

Appellant Insurance Company first asserts that the court erred in overruling its motion for a 'directed finding' made at the close of plaintiffs' evidence.


The cause below was tried to the court without jury. It should be noted that the court did not immediately rule upon defendant's motion for 'direct finding' but, rather, took the matter under advisement at that time. Following such action by the court, defendant elected to proceed with submission of evidence. The court's final judgment entry contained a ruling denying defendant's motion for a 'directed finding.' The error, if any, however, in failing to grant the motion has been waived by defendant's election to proceed with its own case in chief. In this connection, appellees erroneously assert the applicability of Trial Rule 50 insofar as it states:

'A motion for judgment on the evidence made at one stage of the proceedings is not a waiver of the right of the court or of any party to make such motion on the same or different issues or reasons at a later stage as permitted above, except that error of the court in denying the motion shall be deemed corrected by evidence thereafter offered or admitted.' (Emphasis supplied)

Trial Rule 50 is clearly inapplicable in cases tried to the court. Trial Rule 41(B), however, is applicable to such non-jury cases when a motion similar to that here involved is made. Clark v. Melody Bar Inc. (1971) Ind.App., 271 N.E.2d 481; Flynn v. Reberger (1971) Ind.App., 270 N.E.2d 331. We, therefore, deem a waiver provision such as that contained in Trial Rule 50 1 to be necessarily contained by implication in Trial Rule 41(B). The Federal Rule 41(B) has been similarly construed. A. & N. Club v. Great American Ins. Co. (1968 6th Cir.) 404 F.2d 100.

Further, Trial Rule 41(B) does not materially modify the practice formerly followed in Indiana. Ohio Cas. Ins. Co. v. Verzele (1971) Ind.App., 267 N.E.2d 193. The law governing such motions prior to the adoption of Trial Rule 41(B) was as stated in Farm & Home Ins. Co. v. Templeton (1967) 142 Ind.App. 110, 232 N.E.2d 367:

'Also, we do not feel that the appellant was prejudiced by the court's overruling of his motion for a finding at the conclusion of all the evidence, as the court must make a finding whether such a motion is filed or not.' 232 N.E.2d 367, 371.

See also Flynn v. Reberger, supra. We therefore hold that the court did not err in overruling the motion for 'directed finding'.

Appellant Insurance Company next asserts that the evidence failed to show that a contract of insurance existed, but that even if it did, such contract was properly terminated or rescinded prior to the date of plaintiffs' fire loss.


Defendant Insurance Company argues that the evidence failed to show that the Brinegar Agency with which Ogles had all their dealings was a general as opposed to a special agent of the Hoosier Insurance Company. Thus, appellant maintains that it is not bound by the acts or representations of the Brinegar Agency or its employees. In light of the fact that no written policy of insurance was ever actually issued to Ogles, it is the Insurance Company's position that any parole contract made by the Brinegar Agency with Ogles could not be binding upon Hoosier Insurance Company since Brinegar lacked the necessary authority to so commit the company.

Ogles' evidence was to the effect that an employee of the Brinegar Agency on June 21, 1967, at the time Ogle submitted his application for insurance and paid a partial premium, told Ogle that the insurance was in force as of that moment. The evidence of record clearly establishes the Brinegar Agency as general agent of Hoosier Insurance Company with authority to bind the insurer at the time of application, and further, that such binding contract was entered into in this instance. Such was the testimony not only of plaintiff Ogle and of Brinegar himself but also of Mr. Hill, Claims Manager of defendant Insurance Company. There is no doubt, therefore, that on June 21, 1967, a binding contract of insurance was entered into between plaintiffs, Ogles, and defendant, Hoosier Insurance Company.


Defendant Insurance Company upon appeal makes an alternative argument that even if an insurance contract was entered into, it was rescinded or terminated by reason of Ogles' failure to comply with the terms and conditions thereof in that Ogles (1) falsely or mistakenly misrepresented in the application that the dwelling house insured was upon the date of application occupied, when in fact it was vacant, and (2) failed to cooperate or respond to the Insurance Company's July 12, 1967, letter requesting instructions for driving directions to the premises in order that defendant or its representative might take photographs of the dwelling. In essence, defendant Insurance Company's argument is that such failure upon the part of Ogles resulted not in a withdrawal of coverage or termination of a policy after a loss had occurred but, rather, in termination of a preliminary binder of coverage while the application for a policy contract was still pending.

In support of this contention, the Insurance Company states that when the Ogles failed to respond to the July 12 request for driving directions, the Brinegar Agency directed Hoosier Insurance Company for interoffice memorandum dated July 28, 1967, to not issue the policy. The date of the interoffice memorandum, it should be noted, was subsequent to the date which the Insurance Company claims was the date of termination of the preliminary binder, i.e., July 26, 1967. The latter date was mentioned in a letter purportedly mailed to Ogle on July 21, 1967. This letter was an exact copy of the letter dated July 12 requesting the driving directions but to which was appended the following notation:

'7--21--67 Please be advised that inasmuch as we have not heard from you, we must ask the company not to issue this policy, and coverage will cease as of July 26, 1967.'

Said letter was purportedly forwarded to Mr. Ogle by 'Certified Mail.'

With reference to the alleged cause for termination of coverage...

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