64 Ind. App. 566 | Ind. Ct. App. | 1917
This case in 'all of its essential features is similar to the case of Globe, etc., Ins. Co. v. Indiana Reduction Co. (1916), 62 Ind. App. 528, 113 N. E. 425.
Appellant in this appeal, however, seeks to present two additional propositions: First, that he did not know of the violation of the terms of the policy with respect to the use of gasoline until after the fire; therefore it was not required to return the premium in order to make complete answer that the policy was void. • Sec
Appellant has cited a number of cases wherein this and the Supreme Court has held that it was error to direct a verdict in favor of the party having the burden of proof on an issue, and where the evidence was in whole or in part parol, but in each of the cases cited, so holding, the evidence is unlike that in the present case. In those cases there was either a conflict in the evidence or it was uncertain and equivocal in its character, or was reasonably susceptible of more than one interpretation or inference. .In this case, however, the evidence upon all controlling questions is documentary and is susceptible of but one inference or interpretation — that of' the right of appellee to recover and the amount thereof. Haughton v. Aetna Life Ins. Co. (1905), 165 Ind. 32, 73 N. E. 592, 74 N. E. 613; Baker v. Bundy (1913), 55 Ind. App. 272, 278, 103 N. E. 668, and cases cited; Modern Woodmen v. Jones (1912), 52 Ind. App. 149, 151, 98 N. E. 1006.
Judgment affirmed.
Note. — Reported in 115 N. E. 596. Insurance: forfeiture of policy, notice, waiver, 19 Cyc 712, 791; necessity of return or tender of unearned premium to affect cancellation of policy by insurer, 12 Ann. Cas. 1067, Ann. Cas. 1913D 490, 1917B 910, 19 Cyc 798; breach of condition as only rendering policy voidable, 43 Am. Dec. 222, 9 Am. St. 226.