Farm & Home Ins. Co. v. Konradi

• Citation: 136 Ind.App. 356,199 N.E.2d 726
• Decision Date: 30 June 1964
• Docket Number: No. 19901,No. 1,19901,1
• Parties: The FARM AND HOME INSURANCE COMPANY, Appellant, v. Ruby KONRADI, Appellee. . Division
• Court: Court of Appeals of Indiana

Page 726

199 N.E.2d 726

136 Ind.App. 356

The FARM AND HOME INSURANCE COMPANY, Appellant, v. Ruby KONRADI, Appellee.

No. 19901.

Appellate Court of Indiana. Division No. 1.

June 30, 1964.

Rehearing Denied Sept. 21, 1964.

Hagemier & Shannon, Indianapolis, for appellant.

Richard K. Ewan, Lawrenceburg, Albert W. Ewbank, Indianapolis, for appellee.

FAULCONER, Presiding Justice.

This is an appeal from a judgment of the Dearborn Circuit Court reforming a certain policy of insurance issued by defendant-appellant to the deceased husband of plaintiff-appellee who was also the beneficiary.

The controversy arose after the husband's death when the appellee filed a claim for $10,000, being the alleged maximum benefits under the policy in case of accidental death. The application for said policy showed that the number '10,000' had been originally written in the application following the printed words, 'Principal Sum.' The policy when issued contained the typewritten word 'NONE' under the printed words 'Principal Sum' in the Schedule of Insurance section of the policy. The above application had been altered by writing over the number '10,000' the word 'NONE' followed by the words, 'See Policy #34913.' This latter mentioned Policy No. 34913 was a previous policy issued to appellee's husband in the principal sum of $10,000, which amount was duly paid by appellant to appellee.

Appellee contends that the second policy was also for $10,000, and that this was the understanding of appellee and her husband; that the change in figures in the application was made after the agent left with the application and was without their knowledge, consent or understanding, and that neither she nor her husband knew of the alteration of the application or the lack of death benefits in the second policy prior to his death.

Appellant contends that it never issues policies in excess of $10,000 on one life, and that appellee and her husband were so informed by its agent at the time they signed the application.

The controversy, therefore, is basically over the understanding and intentions of the parties involved concerning what the principal amount was in the second policy. In other words--what was the agreement?

After the adverse judgment appellant filed its motion for new trial containing grounds designated, 'FIRST', 'FOURTH', and 'SIXTH', which motion was denied. Appellant took this appeal assigning as error the following:

'1. That the Court erred in its finding and judgment for the Plaintiff, Appellee herein.

'2. That the Court erred in overruling Appellant's Motion for a New Trial.'

In the argument section of its brief appellant urges 'its assignments of errors in connection with paragraph SIXTH of its Motion for New Trial.' Therefore, all other grounds for new trial are waived as are all other assignments of error. Rule 2-17(e) of the Supreme Court, 1962 Revision; State v. Smith et ux. (1957), 237 Ind. 72, 74, 143 N.E.2d 666; 3 F. & W. Ind. Pract. (1963 P.P.), § 2677, p. 147.

Appellant's sixth paragraph of motion for new trial is '[t]hat the finding and decision of the Court is not sustained by sufficient evidence and is contrary to law, * * *.'

Appellee filed a motion to dismiss or, in the alternative, to affirm the judgment, which motion to dismiss was denied and the 'ruling on motion of affirm withheld until cause considered on its merits.' Appellee's grounds attacking the lack of marginal notes and authentication of the Bill of Exceptions and the Reporter's Certificate have been cured, as has appellant's failure to set out the text or summary of the insurance policy.

Appellee next contends, for dismissal or affirmance, that appellant's brief wholly fails to comply with Rule 2-17(d) of the Supreme Court in its condensed recital of the evidence.

'If the verdict or finding is assailed as contrary to law for lack of evidence, or as not sustained by sufficient evidence, the statement shall contain a condensed recital of so much of the evidence in narrative form with references to pages and lines of the transcript as is necessary to present accurately and concisely a full understanding of the questions presented.' Rule 2-17(d) of the Rules of the Supreme Court, 1962 Revision.

'A failure to comply with this requirement waives questions depending on the evidence.' F. W. & H. Ind.Tr. & App.Pract., § 2677, p. 307.

Appellant has condensed into seven pages of its brief the evidence appearing in 162 pages of the transcript. There were 33 exhibits admitted into evidence in the trial court. Appellant's original brief contained none of the exhibits. However, two days before oral argument appellant amended its brief by supplying photostat copies of the second insurance policy (Plaintiff's Exhibit 2) and deceased's application for said policy (Defendant's Exhibit 'A'). Appellee, in her brief, supplied a copy of the same application and a copy of the 'Schedule of Insurance' portion of the second policy.

Appellant makes no reference in the condensation of the evidence section of its brief to direct, cross, re-direct or re-cross examination of the various witnesses.

Appellant condenses the evidence of Ruby S. Konradi (plaintiff below) into two pages of its brief, whereas her testimony covers 65 pages in the transcript.

The testimony of the other witness directly involved in the transaction, namely Jack Maurer, appellant's agent, has been condensed by appellant into two pages of its brief, while his testimony covers 27 pages in the transcript and the condensation is all in conclusions of the appellant. A deposition of the said Jack Maurer was introduced into evidence as plaintiff's Exhibit 22 and appears at pages 98 through 108 of the transcript, but no reference whatever is made thereto in appellant's brief. This the trial court had in addition to his oral testimony at the trial.

Appellant's brief is totally devoid of any reference to the testimony of two of plaintiff-appellee's witnesses whose combined testimony covers 13 pages in the transcript.

As to the documentary evidence available to the trial court, we have only three presented of the 33 admitted into evidence. Among the omitted exhibits, not set out in...