General Ins. Co. of America v. Hutchison, 20726

• Decision Date: 21 August 1968
• Docket Number: No. 20726,No. 1,20726,1
• Citation: 239 N.E.2d 596,143 Ind.App. 250
• Parties: GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. H. J. HUTCHISON, Appellee
• Court: Indiana Appellate Court

Page 596

239 N.E.2d 596

143 Ind.App. 250

GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. H. J. HUTCHISON, Appellee.

No. 20726.

Appellate Court of Indiana, Division No. 1.

Aug. 21, 1968.

Rehearing Denied Oct. 9, 1968.

H. William Irwin, Richard L. Fairchild, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellant.

Tony Foster, Jonathan L. Birge, Bingham, Summers, Welsh & Spilman, Indianapolis, for appellee.

COOPER, Judge.

This appeal is from a judgment rendered by the Marion Superior Court, Room 1 for the appellee, the plaintiff below, and against the appellant in the amount of $8,207.25.

It appears from the issues framed by the complaint and answer that the appellee carried a personal floater insurance policy with the appellant. Such policy, among other things, insured the appellee's scheduled and unscheduled coin collection against theft. During the policy period, part of the appellee's coin collection was stolen.

Appellee filed due notice and proof of loss with the appellant and demanded full payment of his partial loss. Appellant refused to pay the full amount demanded and thereafter the appellee filed the cause of action herein for breach of contract.

Trial was had to the court without the intervention of a jury and thereafter judgment was entered for the plaintiff. Said judgment reads in part as follows:

'Come again plaintiff, by counsel, and defendant, by counsel, having filed herein their briefs, and the Court, being duly advised in the premises now finds that the allegations of plaintiff's complaint are true and that the plaintiff should recover from the defendant the sum of $8,207.25, together with his costs herein.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the

plaintiff recover of and from the defendant the sum of $8,207.25, together with costs herein taxed at $_ _.'

After judgment, the appellant filed a motion for a new trial and the same was overruled by the trial court. Appellant's sole assignment of error is the overruling of its motion for a new trial.

Appellant sets out in the argument portion of its brief the following:

'CAUSES FOR NEW TRIAL

'Appellant's sole assignment of error is the trial Court's overruling of Appellant's motion for new trial (Tr. p. 1). Appellant's motion for new trial appears in the transcript at pages 45--53.'

The appellant sets out individually, the separate assigned errors in its motion for new trial with the argument and cited authorities applicable to each assignment. Nowhere in the appellant's brief has the motion for new trial been set out either in substance or in its entirety. This Court in the case of Hoosier Fence Co. v. Cohen (1965) Ind.App., 210 N.E.2d 54, stated:

'When a motion for new trial is not included in appellant's brief, either verbatim or the substance thereof, no question concerning such motion can be considered on appeal.' (Authorities omitted) Also see Coleman, Ransom v. State of Ind. (1961) 241 Ind. 663, 664, 175 N.E.2d 25; State ex rel. Penrod v. French, Sheriff, et al. (1943) 222 Ind. 145, 51 N.E.2d 858, 149 A.L.R. 1084; Board of Med. Regist. and Exam. of Ind. v. Bowman (1958) 238 Ind. 532, 150 N.E.2d 883; Snow v. State of Ind. (1955) 234 Ind. 234, 125 N.E.2d 802; Bennett v. State of Ind. (1961) 242 Ind. 297, 177 N.E.2d 454; Michaels v. Johnson (1967) Ind.App., 223 N.E.2d 585.

The reason for the above stated rule is simple; at least four judges on this Court participate in the decisions handed down by this Court. Only one record is available on appeal. Therefore, it is necessary to have the motion for a new trial or the substance thereof set out in the appellant's brief in order that all the participating judges may know of the errors claimed by the appellant in the motion for a new trial as submitted to the trial court.

We are of the opinion that the revision of Supreme Court Rule 2--17 does not change the necessity of setting out the motion for a new trial verbatim or the substance thereof in the appellant's brief.

We also note that the Appellant has failed to index its original brief as required by Rule 2--17(i) of the Rules of the Supreme Court.

This Court, as well as our Supreme Court, indulges a liberal attitude in passing upon the sufficiency of the briefs under the Rules of our Supreme Court in order that we may decide all appeals upon their merits insofar as it is possible to do so. Deckard, by her next friend v. Adams (1965) 246 Ind. 123, 125, 203 N.E.2d 303. However, we are of the opinion that it is not the intention of the Supreme Court to relax the application of its rules which it has stated many times have the force and effect of law, to the point of requiring us to search the record in reviewing a case before us in order to reverse a judgment.

This brings us to another fatal point in the appellant's brief. It appears from the record, that the plaintiff's cause of action was based upon a loss covered by a Personal Floater or Inland Marine insurance policy. The record also reveals that said insurance contract and endorsements thereto consisted of five pages of terms, clauses, descriptions, and conditions. However the appellant has set out only one clause of the entire contract in its brief. We are of the opinion that this is not sufficient under the Supreme Court rules applicable to appellant's briefs. Because the appellant has set out only one clause of...