Vann v. Vernon General Ins. Co.

• Decision Date: 24 May 1956
• Docket Number: No. 18678,18678
• Citation: 126 Ind.App. 503,134 N.E.2d 235
• Parties: Nathan VANN, Appellant, v. VERNON GENERAL INSURANCE COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 235

134 N.E.2d 235

126 Ind.App. 503

Nathan VANN, Appellant, v. VERNON GENERAL INSURANCE COMPANY, Appellee.

No. 18678.

Appellate Court of Indiana, In Banc.

May 24, 1956.

Anderson, Hicks & Anderson, F. L. Anderson Sr., F. L. Anderson, Jr., Gary, Snyder & Jacobs, Karl M. Jacobs, Fowler, for appellant.

Gavit, Draper & Eichhorn, Gary, Fraser & Isham, Fowler, for appellee.

KELLEY, Judge.

Appellee, plying its rehearing petition with intense earnestness and persuasive logic, urges that the policy of insurance involved in this action contained a requirement that 'written' notice of accident and 'sworn' proof of loss be filed by the insured with the appellee before action could be maintained on such policy, and that 'there was utterly no evidence of any attempt to comply with that requirement'.

Such contention, presently urged, found no place in appellee's brief and no utterance thereof was heard in the argument. However, if such point was made in the trial court or the attention of said court was directed thereto by appellee's motion for a directed verdict, we would be inclined, in the interest of justice, notwithstanding our usual position as exemplified in Funk v. Rentchler, 1892, 134 Ind. 68, on page 75, 33 N.E. 364, 898, to pause for an appraisal of the assertion. Appellee gives us no citation to the claimed policy provision, but says that it was presented in its motion for a directed verdict, and cites us to page 73 of appellant's brief.

A reference to that citation discloses that the closing paragraph of the Memorandum to Appellee's Motion for Directed Verdict recites:

'That there is no evidence that the plaintiff, if at all entitled to recover under the policy set forth in his complaint, has performed any of the conditions required of him to be performed upon the damage sustained to his automobile'. (Our emphasis).

A perusal of the policy reveals several pertinent conditions other than the one referred to. The quoted portion of appellee's motion does not point out any particular condition alleged to have been unperformed by appellant but refers to the conditions of the policy generally. In the absence of briefs or argument pointing out the particular unperformed condition of the policy complained of, we hardly conceive it to be the assigned task of our court to search out the different conditions expressed in the policy and painstakingly sift all the evidence to find if performance of each condition has been established thereby. If such be our duty, then, indeed, would our required efforts be of herculean proportion and equal consideration of pending appeals would be impossible.

The only coverage of the policy applicable to the claimed loss in this action is that designated in the policy as 'D-1 Collision or Upset'. Under Condition 12 of the policy pertaining to coverage D-1, notice of loss by the insured is not required to be in writing. It is therein stipulated that 'When loss occurs, the named insured shall * * * (b) give notice thereof as soon as practicable to the company or any of its authorized agents * * *'. The evidence discloses that appellant informed the insurance agent, Mr. Rothschild, within an hour after the collision occurred and the latter said he would report it to the adjuster. The adjuster, Harold D. Florey, testifying as a witness called by appellant, stated that the accident was reported to him immediately after the accident. Such evidence, we think, tended to show that appellant gave notice of loss as provided for in the policy and was proper for the consideration of the jury on that question.

Clause (c) of said Condition 12, of said policy provides that when loss occurs, the insured shall 'file proof of loss with the company within sixty days after the occurrence of loss * * * in the form of a sworn statement of the named insured', setting forth therein certain specified information. Said condition of the policy is one that may be waived by the insurer. Home Insurance Co. v. Day, 1929, 90 Ind.App. 128, 129, 168 N.E. 464; Aetna Insurance Co. v. Shryer, 1882, 85 Ind. 362. Such waiver may be established by a course of conduct on the part of the insurer and the question of such waiver is for the jury. Home Insurance Co. v. Day, supra; Providence Washington Insurance Co. v. Wolf, 1907, 168 Ind. 690, 80 N.E. 26.

There is evidence in the record from which the jury, we think, could have found that appellee waived strict compliance with the proof of loss provision above referred to. The evidence reflects that the insurance agent was notified of the occurrence within an hour thereafter and said agent informed appellant that he would 'report it to the adjuster'. It was immediately reported to the adjuster representing appellee, who examined the automobile. The Fifth Avenue Ford garage was authorized by appellee to 'take over and fix' the automobile. Appellee then 'Proceeded along the normal procedure, obtaining estimates, after we obtained the report as to how the accident occurred, we obtained estimates to find the extent of the damage'. Discussion was had by appellant with the adjuster as to the 'way the frame was repaired'. Appellant had several conversations with the adjuster, in the course of which appellant complained that the automobile 'wasn't going to be right, they wasn't putting this new frame in' and the adjuster said that 'the Company told me to tell them to go ahead and fix the car' and, on several occasions after that, told appellant that 'they' had authorized him 'again' to tell the 'Fifth Avenue Ford' to go ahead. That the insurance agent, adjuster, and appellant together went over to the 'Fifth Avenue Ford'. That the adjuster had made a report to appellee that he had placed the automobile with the 'Ford Motor people'. The automobile was reported ready by the garage, but when taken out on the highway it failed to function properly and had to be towed back to the repair shop. Appellant maintained that the automobile would not be as it was without a new frame which appellee refused to furnish on the ground that the cost thereof 'was more than the car was worth'. Appellee's adjuster went with appellant to the Ford garage when the latter gave notification that the car was ready and also went with appellant to the Tri-City Motors to make a further inspection. The adjuster also assisted in securing estimates of the damage to the automobile and told appellant that 'This $279.81 is as far as the company will go'. The evidence also tends to disclose...