Automobile Underwriters, Inc. v. Smith

• Decision Date: 09 June 1960
• Docket Number: No. 1,No. 19030,19030,1
• Citation: 131 Ind.App. 454,167 N.E.2d 882
• Parties: AUTOMOBILE UNDERWRITERS, INCORPORATED, Appellant, v. Amanda SMITH, Appellee
• Court: Indiana Appellate Court

Page 882

167 N.E.2d 882

131 Ind.App. 454

AUTOMOBILE UNDERWRITERS, INCORPORATED, Appellant, v. Amanda SMITH, Appellee.

No. 19030.

Appellate Court of Indiana, Division No. 1.

June 9, 1960.

Steers, Klee, Jay & Sullivan, Indianapolis, for appellant.

Clair McTurnan, Lawrence Hinds, Indianapolis, for appellee.

AX, Presiding Justice.

The appellant by its purported petition for rehearing has presented no issue for the consideration of this court by reason of its failure to comply with Rule 2-22 of our Supreme and Appellate Courts in 'stating concisely the reason why the decision is thought to be erroneous.'

Appellant has merely stated 17 conclusions in its petition, none of which concisely point out why the decision of our court is thought to be erroneous.

A petition for a rehearing, under the rules of appellate procedure, is a pleading and not a mere argument or brief. The Baltimore & O. S. W. R. Co. v. Conoyer, 1897, 149 Ind. 524, 532, 48 N.E. 352, 49 N.E. 452.

'A petition for rehearing is for the purpose of giving the appellate court an opportunity to correct its own omissions or errors by having them called to its attention. The petition should ask for a rehearing only on points which were properly presented at the first hearing and were overlooked or improperly decided. State Board of Tax Com'rs v. Stanley, 1952, 231 Ind. 338, 108 N.E.2d 624.' Flanagan, Wiltrout & Hamilton's, Indiana Trial and Appellate Practice, (1959 Supp.), Ch. 57, § 2824, p. 129.

In the case of Miller, etc. v. Ortman, etc., et al., 1956, 235 Ind. 641, 136 N.E.2d 17, Judge Achor, speaking for the Supreme Court, in substance declared that petitions for rehearing consisting only of reargument of the respective cases on their merits, without the benefit of any concise statement of the reasons why the respective decisions were thought to be erroneous, presents no issue any more than would the argument portion of a brief without the assignment of errors.

In the case of Dorweiler et al. v. Sinks et al., 1958, 238 Ind. 368, 371, 151 N.E.2d 142, 144, again Judge Achor, speaking for the court on petition for rehearing where arguments followed in the same paragraph containing the reason why the decision was thought to be erroneous, stated, 'Arguments so presented must be ignored as surplusage, and reasons for rehearing not supported by argument must be considered waived.' If we take the latter part of this statement at its apparent meaning, then it becomes necessary for all petitions for rehearing to be supported by argument. The purported petition for rehearing filed in this case must also fail for noncompliance with this statement of law, although Rule 2-22 does not specifically so state.

In order that lawyers in Indiana and also this court may be guided in the future, we are setting forth the appellant's purported petition for rehearing:

'Appellant respectfully represents that the Court erred in its decision in the following respects:

'1. The Court erred in holding that the trial court did not err in overruling the appellant's motion to withdraw from the consideration of the jury certain allegations in appellee's complaint.

'2. The Court erred in holding that the trial court did not err in overruling appellant's motion for directed verdict at the conclusion of appellee's evidence.

'3. The Court erred in holding that the trial court did not err in overruling the appellant's motion for a directed verdict at the conclusion of all the evidence.

'4. The Court erred in holding that the trial court did not err in overruling the appellant's motion made at the conclusion of all the evidence to withdraw from the consideration of the jury certain allegations in the appellee's complaint.

'5. The Court erred in holding that the verdict of the jury was sustained by sufficient evidence.

'6. The Court erred in holding that the verdict of the jury was not contrary to law.

'7. The Court erred in holding in effect that appellant waved the issue that appellee had failed to prove her right to damages for negligence against the Fear Campbell Company, appellant's assured.

'8. The Court erred in holding in effect that the appellee had a right to rely upon the appellant's adjuster's statements in reference to her physical condition when the record discloses that the appellee had ample opportunity to and did visit doctors of her own choosing and was better informed as to her physical condition than appellant's adjuster.

'9. The...