Glaser v. Williamsburg City Fire Insurance

Nichols, C. J. —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 [321] appear in the trial court, and does not participate in this appeal. 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. 1. [322] 2. [321] The only error assigned and presented is the court’s action in overruling the motion for a new trial, which motion presents twenty-eight specifications of error. The only question that we need to consider is whether appellant had forfeited all right to recover under the policy of insurance sued upon, by reason of her failure to file with or furnish to appellee a proof of loss, as required by §4622g Burns 1914, Acts 1911 p. 525, and by the policy, or to prove a waiver of such requirement. [322] As far as appears by tbe evidence the local agent of appellee inspected the remains of the automobile the next day, after which time he furnished appellant with blanks for proof of loss. There was no evidence that such local agent had any authority to make adjustment of the loss. It does not appear by the evidence that any other agent or officer of ■appellee did anything looking to an adjustment of the loss, or that could be construed as a waiver of proof of loss. Settlement with the mortgagee garage about eight months after loss was not a waiver of proofs on the part of appellant. Hore v. Headley (1896), 54 N. J. Eq. 545, 35 Atl. 445. Appellant offered to prove that the automobile was taken from the place where it was burned to the Eifth Avenue Garage by appellee’s local agent, and that it was afterwards disposed of, by whom the evidence does not disclose, nor does the evidence show that such local agent had any authority whatever in the matter. The evidence was properly excluded. 3. [323] 4. 5. [322] ' Appellant was permitted to prove that she went to the office of her attorney, Roy E. Ressler, and had proof of loss filled out, and then she signed it. The following question was then propounded to such attorney: “Now, Mr. Ressler, state to the court whether you know what became of the proof of loss after it was signed?” ' This question was objected to by appellee, and the question was then withdrawn, and the following offer to prove was made: “The plaintiff offers to prove by the witness, if permitted to testify,-that after the proof of loss was signed and sworn to by Mrs. Glaser that he took it out and put it in the United States mail, addressed to the defendant insurance company at Free-port, Illinois.” Objection to this offer was sustained. [323] The question having been withdrawn, there was nothing before the court. To save a question on the court’s ruling in excluding evidence there must be a pertinent question in the record. Russel v. Stoner (1897), 18 Ind. App. 543, 47 N. E. 645, 48 N. E. 650; Indianapolis, etc., Transit Co. v. Hall (1905), 165 Ind. 557, 76 N. E. 242. The only purpose of such offer was evidently to raise a prima facie presumption of the receipt of the proof of loss by appellee. But no such presumption can arise unless it affirmatively appears that the letter was duly stamped. 16 Cyc 1069; Home Ins. Co. v. Marple (1890), 1 Ind. App. 411, 27 N. E. 633; Duringer v. Moschino (1884), 93 Ind. 495; Bankers Mutual Casualty Co. v. Peoples Bank., etc. (1906), 127 Ga. 326, 56 S. E. 429; Welsh v. Chicago Guaranty, etc., Society (1899), 81 Mo. App. 30. No attempt seems to have been made to prove the contents of such proof of loss, and had such an attempt been made, such evidence could not have been heard, for no steps preliminary to its introduction had been taken. Home Ins. Co. v. Marple, supra; Newton v. Donnelly (1893), 9 Ind. App. 359, 363, 36 N. E. 769. Other objections need not to be considered. There being no evidence of waiver of proof of loss, and no evidence of the receipt of such proof, the judgment is affirmed.