New Amsterdam Cas. Co. v. Plaza Square Realty Co. , 15039.

• Decision Date: 19 April 1935
• Docket Number: No. 15039.,15039.
• Citation: 195 N.E. 289,101 Ind.App. 174
• Parties: NEW AMSTERDAM CASUALTY CO. v. PLAZA SQUARE REALTY CO.
• Court: Indiana Appellate Court

101 Ind.App. 174

195 N.E. 289

NEW AMSTERDAM CASUALTY CO.

v.PLAZA SQUARE REALTY CO.

No. 15039.

Appellate Court of Indiana, in Banc.

April 19, 1935.

Appeal from Hendricks Circuit Court; A. J. Stevenson, Judge.

Action by the Plaza Square Realty Company against the New Amsterdam Casualty Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

White, Wright & Boleman, of Indianapolis, and Edgar M. Blessing, of Danville, for appellant.

Bingham, Mendenhall & Bingham, of Indianapolis, for appellee.

CURTIS, Judge.

This action was commenced in the trial court by the appellee against the appellant to recover damages claimed to be due the appellee for a breach of an insurance contract executed by the appellant to the appellee.

The appellant executed an owner, landlord, and tenant public liability policy to the appellee, which policy, with stipulated limitations, insured the appellee against loss from liability imposed by law upon it for damages on account of bodily injuries or death suffered as a result of any accident occurring while the policy was in force by any person or persons not employed by the appellee while upon the premises or upon the sidewalks or other ways immediately adjacent to the property described in the policy.

The appellee claimed that on the 17th day of January, 1929, one Lillie Failing was injured while attempting to enter the apartment house located on the appellee's premises, by falling into a cellarway on the side of the apartment house; that the appellee had no knowledge whatsoever of the occurrence of the accident until September 24, 1929; that on September 27, 1929, it gave written notice of the accident to the G. L. Ramey Agency, a brokerage agency through which the insurance was written; that thereafter, on November 14, 1929, the said Lillie Failing brought suit against the appellee on account of the alleged injuries sustained in the accident, and that the appellant was immediately notified of the filing of this suit by the appellee; that the appellee requested the appellant to defend the suit in accordance with certain stipulations in the policy of insurance which the appellee claimed obligated the appellant to defend said suit; that thereafter the appellant denied and disclaimed coverage of the accident and refused to defend the suit; that thereafter the appellee defended the suit and a judgment was entered against the appellee therein in the sum of $800 with interest and costs; that after the rendition of this judgment the appellee demanded that the appellant pay the same together with costs, expenses, and attorneys' fees incurred in the defense of the suit, and that the appellant failed and refused to pay the judgment; that, therefore, the appellee was entitled to recover damages against the appellant in the sum of $800 with costs, expenses, and attorneys' fees incurred in the defense of the said suit.

The appellant contested the action mainly upon the theory that the appellee, in violation of the express stipulation in the policy, failed to notify the appellant of the occurrence of the accident within a reasonable time after it occurred, the accident having occurred in January of 1929, and the appellant having received no notice of the occurrence of said accident or any claim on account thereof until after September 27, 1929, and that no excuse was shown, which would justify the appellee in failing to give the notice required by the contract of insurance.

The case was tried on the appellee's amended complaint in one paragraph, which was answered in general denial. The insurance...