Ohio Cas. Ins. Co. v. Verzele, 770A123
Decision Date | 08 March 1971 |
Docket Number | No. 770A123,No. 2,770A123,2 |
Citation | 267 N.E.2d 193,24 Ind.Dec. 695,148 Ind.App. 429 |
Parties | The OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Edmund VERZELE et al., Appellees |
Court | Indiana Appellate Court |
Roland Obenchain, Thomas F. Lewis, South Bend, for appellant.
F. Richard Kramer, Mishawaka, for appellees.
The Plaintiff-Appellant, The Ohio Casualty Insurance Company, submitted its supplemental complaint for damages designating the Appellees, Edmund Verzele, Steve S. Eazsol and Julia Eazsol, as defendants to the trial court without a jury. At the close of the Appellant's case in chief, the Appellees filed and the trial court granted a motion for finding against the Appellant and judgment was entered thereon.
The Appellee, Eazsol, was insured by what is commonly known as a Home Owners Insurance Policy by the Appellant Insurance Company, which policy contained the following exclusion:
'Section II of this policy does not apply:
(a) To (1) any business property of an Insured, or any business pursuits in connection with a business solely owned by an Insured or owned by a partnership of which an Insured is a partner, * * *.'
On December 6, 1968, while the Appellee Eazsol and the Appellee Verzele were engaged in the removal of a metal band from a radiator on the premises of the Appellee Eazsol's home a fragment thereof struck Appellee Verzele in the eye causing injury, which resulted in Appellee Verzele filing a law suit against Appellee Eazsol. The Appellant Insurance Company defended the case of Verzele v. Eazsol under a reservation of rights agreement. An adjustor for the Appellant made an investigation including an oral interview and obtained a written statement from the Appellee Eazsol. Eazsol's written statement stated:
This statement was admitted in evidence without objection.
Likewise, a statement was taken from Appellee Verzele which stated:
Likewise, this statement was admitted in evidence without objection.
Considering the evidence and the admissions and pleadings most favorable to the Appellant the following facts were established:
'1. Eazsol and Verzele do auto repair work and collect junk parts.
2. Eazsol and Verzele work with each other tearing down the parts and salvaging them.
3. On the day of the accident, Eazsol and Verzele were stripping automobile radiators (emphasis added) so the different metals could be sold or salvaged.
4. They make a living doing this salvage.
5. Eazsol filed several tax returns in which he listed only his home address as his business address.
6. The applicable policy of insurance does not have coverage for accidents connected with business pursuits.
7. At the time of the accident, Eazsol and Verzele were involved in a business pursuit.
8. The insurance adjuster, at the time of his investigation, told Eazsol that he was engaged in a business pursuit at the time of the time of the accident.
9. The plaintiff insurance company wrote Eazsol that there was no coverage because of the business pursuit engaged in at the time of the accident.
10. Eazsol never denied that he was involved in a business pursuit at the time of the accident.'
Also, a copy of Appellee Eazsol's federal income tax return for the calendar year 1968, including Schedule C for the year in question, was admitted into evidence without objection. Schedule C of said federal income tax return listed Appellee Eazsol's place of residence as his business residence and made no other mention of the business address. It also reflected gross receipts from business conducted at that address in the sum of $1946.36.
The rule of practice applicable to the action of the trial court in this case is trial rule 41(B) of the Indiana Rules of Civil Procedure which provides:
The comments of the Civil Code Study Commission in regard to Rule 41(B) are helpful. As found in Volume 3 of Harvey's, Indiana Practice, page 212, these comments state:
'This subdivision provides for an involuntary dismissal upon motion of the opposing party after the plaintiff or party with the burden of proof upon an issue has completed presentation of his evidence, on the ground that upon the facts and the law he has shown no right to relief. This fulfills the function of a motion for a directed verdict in a jury case (a motion for judgment on the evidence under Rule 50). It will not modify present Indiana practice to any degree. In Indiana, a defendant may move for a finding in his favor at the conclusion of the plaintiff's evidence without reserving the right to proceed with his evidence in the event the motion should be denied. He is not precluded from introducing his evidence if he timely requests the right to do so after his motion is overruled. Smith v. Markun, 124 Ind.App. 535, 119 N.E.2d 899 (1954) ( ).
It has been held that oral motions for peremptory findings have the same force and effect as written motions, and that it need not be stated wherein there was a...
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