72 Ind. App. 319 | Ind. Ct. App. | 1920
—This action by appellant against appellees was on a policy of insurance issued by appellee Williamsburg City Fire Insurance Company, of New York, insuring appellant, and appellee Fifth Avenue Garage, against loss or damage by fire to an automobile, which automobile was damaged by fire September 19, 1915. The interest of appellee garage was that of mortgagee. Settlement by appellee insurance company was made with appellee garage May 17, 1916, and such appellee garage, having no further interest in the controversy, did not
Appellee insurance company, hereinafter designated as appellee, filed an answer in two paragraphs, the first being a.general denial, and the second averring failure to file proof of loss within sixty days, as required by statute, and by the policy. Appellant replied in five paragraphs, the first being, a general denial; the second averring verbal notice to appellee’s local agent, and inspection of the remains by him and by others from appellee’s office other than the local office; the third averring notice to the local agent, furnishing of blanks by such local agent, and filling and mailing the same by appellant to appellee within sixty days; the fourth averring notice to appellee by the garage company, settlement with such garage company, and assignment of the garage company’s note and mortgage to appellee; and the fifth averring substantially the same facts as the fourth.
There was a trial by the court, without the intervention of a jury, and at the close of appellant’s evidence, on motion of appellee, the court found for appellee, and entered judgment accordingly. From this judgment, after her motion for a new trial was overruled, appellant prosecutes this appeal.
There being no evidence of waiver of proof of loss, and no evidence of the receipt of such proof, the judgment is affirmed.