Stucker v. College Life Ins. Co. of America, 19832

Decision Date08 November 1965
Docket NumberNo. 19832,19832
Citation211 N.E.2d 320,139 Ind.App. 422
PartiesMarian Ford STUCKER, Appellant, v. The COLLEGE LIFE INSURANCE COMPANY OF AMERICA, Appellee.
CourtIndiana Appellate Court

[139 INDAPP 424] Steers, Klee, Jay & Sullivan, Arthur J. Sullivan, David L. Millen, Indianapolis, for appellant.

John Rabb Emison, George B. Jeffrey, Indianapolis, for appellee.

FAULCONER, Judge.

Appellant has filed her purported petition for rehearing consisting of twelve allegations of error. Each is a flat 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.

[139 INDAPP 441] A 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, at page 573,

'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 portions 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 [139 INDAPP 442] Korea 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,...

To continue reading

Request your trial
5 cases
  • Wallace v. Duckworth
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 19, 1985
    ...See New York Life Insurance Co. v. Henriksen, 421 N.E.2d 1117, 1118 (Ind.App.1981); Stucker v. College Life Insurance Co. of America, 139 Ind.App. 422, 440-41, 211 N.E.2d 320, 321 (1965) (in banc), cert. denied, 386 U.S. 934, 87 S.Ct. 958, 17 L.Ed.2d 806 (1967); Daviess-Martin Co. Rural Tel......
  • Cunningham v. Hiles
    • United States
    • Indiana Appellate Court
    • March 25, 1980
    ...Ind. 447, 199 N.E.2d 712, 713; State v. Indianapolis Airport Authority (1977), Ind.App., 366 N.E.2d 240; Stucker v. College Life Ins. Co. (1965), 139 Ind.App. 422, 211 N.E.2d 320, 321; Daviess-Martin County Rural Tel. Corp. v. Public Service Commission (1961), 132 Ind.App. 610, 175 N.E.2d 4......
  • O'Meara v. American States Ins. Co., 270A17
    • United States
    • Indiana Appellate Court
    • April 8, 1971
    ...of an insurance policy their popular and ordinary meaning. Stucker v. College Life Ins. Co. (1965) 139 Ind.App. 422, 208 N.E.2d 731, 211 N.E.2d 320; certiorari denied, 386 U.S. 934, 87 S.Ct. 958, 17 L.Ed.2d 806. Hartford Live Stock Ins. Co. v. Everett (1930), 93 Ind.App. 238, 169 N.E. 473. ......
  • Fields v. State
    • United States
    • Indiana Appellate Court
    • February 20, 1979
    ...rehearing only those issues which were presented at the first hearing but overlooked or improperly decided. Stucker v. College Life Ins. Co., (1965) 139 Ind.App. 422, 211 N.E.2d 320. In his petition for rehearing, Fields challenges certain events which occurred after we filed our opinion Oc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT