Stucker v. College Life Insurance Co. of America

On Petition For Rehearing

Faulconer, J.

— Appellant has filed her purported petition for rehearing consisting of twelve allegations of error. Each is a fiat conclusion that this court erred in holding or failing to hold, or ruling or not ruling, as appellant desired.

Appellee has filed a petition to dismiss the petition for rehearing as not complying with Rule 2-22, Rules of the Supreme Court. Although we have serious doubts concerning the compliance of said petition for rehearing with said rule, we are of the opinion that the petition to dismiss should be denied and appellant given the benefit of “sufficient compliance” with the rule. Therefore, appellee’s petition to dismiss appellant’s petition for rehearing is denied.

Specifications 1, 2, 3 and 4 of appellant’s petition for rehearing merely state that this court erred in sustaining the trial court’s action sustaining appellee’s demurrer; in sustaining the trial court’s overruling of appellant’s motion to reconsider; in ruling that the law of Colorado did not control the construction of the contract; and in not giving full faith and credit to the laws of Colorado. Suffice to say that we carefully considered these issues and sufficiently covered them in our opinion.

Appellant’s specifications 5, 6, 7, 8, 9, 10, 11 and 12 present no grounds for rehearing as they present new questions not assigned on appeal or argued in the briefs, in addition to the possible failure to comply with the requirements of Rule 2-22, supra.

*441A petition for rehearing should ask for a rehearing only on points which were properly presented at the first hearing and were overlooked or improperly decided. City of Indianapolis, etc. v. Wynn et al. (1959), 239 Ind. 567, 582, 157 N. E. 2d 828, 159 N. E. 2d 572; State Board of Tax Commissioners v. Stanley (1952), 231 Ind. 338, 340, 108 N. E. 2d 624 (Transfer denied); Daviess-Martin Co. etc. v. Pub. Serv. Comm. (1962), 132 Ind. App. 610, 625, 174 N. E. 2d 63, 175 N. E. 2d 439.

As Judge Bobbitt stated in City of Indianapolis, etc. v. Wynn et al., supra (1959), 239 Ind. 567, at page 582, 157 N. E. 2d 828, 159 N. E. 2d 572,

“This question was not briefed or urged in appellees’ brief on appeal, and it cannot be raised for the first time on petition for rehearing.”

We were concerned with the lack of argument on many issues, both in appellant’s briefs filed herein, and at oral argument, but it is elementary that these issues cannot be first presented to this court on a petition for rehearing. Neither were we under a duty to search the record for grounds not assigned as error by appellant, or reasons not argued by appellant, in order to reverse the judgment of the trial court.

Appellant had the burden to show error on the part of the trial court by assignment of error, citation of authority and application thereof, and with cogent argument. Here, much to our bewilderment at the time, appellant chose to argue only two issues.

As we stated in our opinion, at page 737 of 208 N. E. 2d,

“Appellant, in the argument section of her brief, after setting forth pertinent allegations of Count I and Count II of her amended complaint and the applicable portion of the two exclusionary provisions, concludes that,
“ ‘From the foregoing, it therefore appears without question, the following:
“ ‘That Lyle Stucker, husband of Appellant, died on October 16, 1952, of bullet wounds received in the Country of *442Korea while serving in the armed forces of the United Nations, at which time appellee had in full force and effect a policy of insurance upon the life of said Stucker, including a double indemnity benefit clause, payable to Appellant as beneficiary.
“ ‘The only issue thus presented to this Court and the Court below, as raised by Appellee’s demurrer, may be simply stated:
“ ‘Do the “war clause” exclusions as set forth in the policy of insurance executed by appellee upon the life of Appellant’s late husband apply in the case of death occurring from bullet wounds received by him while serving in the armed forces of the United Nations in the Korean Action?’
“Appellant and appellee confine themselves in their briefs exclusively to this sole question except for the point of which State law controls. We are then left to determine whether the ‘Korean Action,’ alleged in the amended complaint, was ‘war,’ declared or undeclared, as the term is used in said exclusion clause of appellee’s policy. Appellant offers us no help on this particular question and makes no mention of it in the argument section of her brief except to say that with reference to the Korean Action the Congress of the United States has never declared it a war. . .

We carefully and thoroughly considered the issues properly presented by appellant. If she desired an opinion of this court on these matters contained in her petition for rehearing she had not only the duty under the rules of court, but the obligation to have presented them on appeal.

One can readily recognize the situation with which our appellate tribunals would be confronted if we would admit issues which litigants failed to properly present and argue on appeal to be grounds for granting a petition for rehearing.

That appellant had ample opportunity to raise, argue and have decided, both in the trial court and on appeal, those issues raised now for the first time in her petition for rehearing is readily apparent from the history of this case, and the many briefs and pleadings filed herein. That she chose not to do so until now is a question we need not determine. Our courts of appeal certainly have ample work to do in decid*443ing the many and varied issues that are presented to us without being required to speculate on what issues and questions should, or could, have been presented but were not for reasons known only to the appellant.

Petition for rehearing denied.

Bierly, C.J., Prime, P.J., Carson, Hunter, Mote and Smith, JJ., concur.

Wickens, J., not participating.

Note. — Reported in 208 N. E. 2d 731. Rehearing denied in 211 N. E. 2d 320.