State Farm Mut. Auto. Ins. Co. v. Estes, 20686
| Decision Date | 29 January 1968 |
| Docket Number | No. 1,No. 20686,20686,1 |
| Citation | 142 Ind.App. 151,233 N.E.2d 253 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Rondal ESTES, by his next friend, Dorothy Estes, Appellee |
| Court | Indiana Appellate Court |
James E. Rocap, Jr., Indianapolis, John T. Sharpnack, Columbus, Rocap, Rocap, Reese & Robb, Indianapolis, of counsel, for appellant.
James L. Kershaw, Columbus, Goltra, Cline, King and Kershaw, Columbus, of counsel, for appellee.
This action was commenced by appellee, the injured party, against the appellant insurance company on an insurance policy issued to one Lloyd Fisher. The appellant had denied coverage and the appellee had recovered a judgment by default against Fisher in the amount of $45,000. When the execution on such judgment against Fisher was returned unsatisfied, the appellee brought suit against the appellant under Acts 1935, Ch. 162, § 177, p. 588, § 39--4309, Burns' 1965 Replacement.
At the close of all the evidence appellant made a motion for a directed verdict in its favor, which was granted by the trial court and judgment was rendered accordingly. Thereafter the appellee submitted his motion for new trial which was sustained by the trial court.
The appellant assigns as error in this court:
1. The court erred in sustaining appellee's motion for new trial.
2. The court erred in granting appellee a new trial in said cause.
If any of the reasons stated by the trial judge are valid, this court must affirm the order of the trial granting the motion for new trial.
Griffith v. Mathew (1967), Ind.App., 229 N.E.2d 657, 658, 11 Ind.Dec. 181 (Trans. Denied); and cases there cited.
In the last paragraph of reasons for granting appellee's motion for new trial, the trial court stated,
'Evidence was allowed to be introduced which, in the opinion of the Court, was sufficient to allow the jury to determine whether or not defendant had waived strict compliance with the notice provision of the policy.'
The evidence produced is not set forth verbatim or in condensed form in appellant's brief. Whether it appears in the transcript as a bill of exceptions is of no concern to us since we will not search the record on appeal to reverse.
Since we do not have the evidence before us we, on appeal, presume there was evidence to support the action of the trial court. The burden is upon appellant to demonstrate that none of the reasons given are valid and to affirmatively demonstrate an abuse of discretion by the trial court in the granting of the motion for a new trial. Griffith v. Mathew, supra (1967), Ind.App., 229 N.E.2d 657, 658, 11 Ind.Dec. 181, (Trans. Denied).
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