On Petition for Rehearing.
Batman, J.Appellant, in a brief in support of its petition for a rehearing, has contended so earnestly, that the court “brushed aside” one of the principal questions presented on appeal, viz., the effect of alleged false swearing of appellee Bales, in the two proofs of loss submitted by him, with reference to the ownership of the automobile and the amount of loss sustained, that we have carefully reviewed its original brief, to ascertain if there is any possible merit in this claim. Such review discloses that appellant failed to present any such question in its original brief, because of a failure to set out therein, in the recital of the evidence, as the rules require, the contents of such proofs of loss or the substance thereof, and because of a failure to direct any proposition or point to such question, as the rules also require. Such failure amounted to a waiver of the question stated. In fact, an omission in either of such respects would have worked the same result. Goshen Milling Co. v. Bailey (1917), 186 Ind. 377; State, ex rel., v. McNelis (1919), 72 Ind. App. 231. Moreover, as a further evidence of such waiver, we find the following statement in appellant’s original brief: “As to the one vital point in this case, that is, whether or not Bales had an uncondi*310tional or sole ownership in the car at the time it was delivered to him by Nichols & Wright, and at the time of the fire, there is absolutely no conflict in the evidence.” The question relating to the alleged false swearing having been waived in the original brief, cannot now be presented for the first time on petition for a rehearing. Federal Union Surety Co. v. Schlosser (1917), 66 Ind. App. 199. However, we may add, in passing, that we entertain grave doubts if appellant could have prevailed on the question which it now seeks to present, even if it had been properly before us when the original opinion was prepared, for the following reasons: (1) Appellee Bales may have been the sole and unconditional owner of the automobile, notwithstanding he purchased the same under a conditional sale contract from his coappellees, as they had the right to treat the sale as absolute, thereby giving the purchaser full title. Turk v. Carnahan (1900), 25 Ind. App. 125, 81 Am. St. 85; Jessup v. Fairbanks, Morse & Co. (1906), 38 Ind. App. 673; Swain v. Schild (1917), 66 Ind. App. 156; Schneider v. Daniel (1921), 181 Ind. 59, 131 N. E. 816. The court may have found that this was done, based on the evidence which shows that the vendors of the automobile called the agent of appellant and requested that he write the policy in suit in the name of Bales with a “loss payable clause” in their favor. (2) A discrepancy in the amount of loss sustained, as appears in the two proofs of loss, or as appears between either, and the actual loss proven, does not show conclusively that appellee Bales was guilty of false swearing, in the light of the following authorities: 13 Am. & Eng. Ency. of Law (2nd ed.) 344; Hodge v. Franklin Ins. Co. (1910), 111 Minn. 321, 126 N. W. 1098; Hirschman v. Fireman’s, etc., Ins. Co. (1910), 123 N. Y. Supp. 781; Stone v. Hawkeye Ins. Co. (1886), 68 Iowa 737, 28 N. W. 47, 56 Am. Rep. 870; *311Erman v. Insurance Co. (1883), 35 La. Ann. 1095. It follows, therefore, that the trial court may have found that appellant had not sustained its defense, based on false swearing, and since there is some evidence to support such a finding, we must assume on appeal that it was so found. See also the following, as to when false swearing may not be a defense. 26 C. J. 385; Maher v. Hibernia Insurance Co. (1876), 67 N. Y. 283; Pearman v. Farmers’, etc., Ins. Co. (1919), (Mo.) 214 S. W. 292; Fuhrman v. Sun Insurance Office (1914), 180 Mich. 439, 147 N. W. 618, Ann. Cas. 1916C 466; Rohrbach v. Aetna Insurance Co. (1875), 62 N. Y. 613. Other questions presented by appellant were fully considered and determined in the original opinion, and, upon reviewing the same, we adhere to the conclusions there announced. Appellant’s petition for a rehearing is therefore denied.