Western Ins. Co. v. Ashby

• Decision Date: 05 June 1913
• Docket Number: No. 8,004.,8,004.
• Citation: 53 Ind.App. 518,102 N.E. 45
• Parties: WESTERN INS. CO. v. ASHBY.
• Court: Indiana Appellate Court

53 Ind.App. 518

102 N.E. 45

WESTERN INS. CO.

v.ASHBY.

No. 8,004.

Appellate Court of Indiana, Division No. 1.

June 5, 1913.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Leona Ashby against the Western Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Robert B. Dreibelbiss and H. I. Smith, both of Ft. Wayne, for appellant. Howard L. Townsend and Elmer Leonard, both of Ft. Wayne, for appellee.

FELT, P. J.

This is a suit by the appellee against the appellant to recover upon an insurance policy for the loss by fire of certain personal property.

[1] Trial by jury resulted in a verdict for appellee in the sum of $2,500. From a judgment on the verdict the appellant has appealed, and in his brief states as to the first error relied on that the appellee's complaint does not state facts sufficient to constitute a cause of action. Neither the complaint nor the substance thereof is set out in the brief. Furthermore the only defect suggested in appellant's brief appears to be without foundation for appellee shows that the apparent defect has been cured by the return to a writ of certiorari duly issued on order of this court.

Appellant also states in its brief that the court erred in overruling its separate demurrer to the second and fifth paragraphs of appellee's reply to its second, third, and fourth paragraphs of answer. But neither the replies nor the demurrers are set out in the briefs, nor is the substance thereof stated.

Appellant also claims the court erred in overruling its motion for a new trial. From the briefs we learn that a new trial was asked because the verdict of the jury is not sustained by sufficient evidence, and is contrary to law; that the damages assessed by the jury are excessive; that the court erred in giving to the jury certain instructions and in refusing to give certain instructions tendered by appellant; also that the court erred in admitting in evidence the testimony of the appellee, in which she related a conversation between herself and an insurance broker named Kehoe, who solicited the insurance, delivered the policies, and collected the premiums.

Appellant has not set out either the instructions given or refused or the substance thereof. Rule 22 (55 N. E. v) is plain and definite, and its purpose and scope has been stated in many decisions. Litigants who wholly ignore the rules of the court cannot expect the court to search the record for errors they have failed to present. In this case appellant has almost wholly ignored the rules and thereby waived the errors, if any, it desires to have considered. Chicago, etc., Co. v. Walton, 165 Ind. 253, 74 N. E. 1090;Schrader v. Meyer, 48 Ind. App. 36, 95 N. E. 335;Webster v. Bligh, 98 N. E. 73.

Appellee has set out in her briefs much of the evidence given at the trial, which is sufficient to enable us to consider the questions on the motion for a new trial which relate to the sufficiency of the evidence to sustain the verdict, and the assignment that the verdict is contrary to law; also the admissibility of part of appellee's evidence as above shown. The evidence tends to show that appellee was the owner of a large amount of household goods and furniture in the city of Ft. Wayne, of the probable value of $7,000; that on the 10th day of February, 1909, she procured two policies of fire insurance, each for $2,500, one of which was issued by appellant and the other by the Humboldt Insurance Company; that each of said policies was written by Walsh and Kierspe, insurance agents for said companies; that one Kehoe was engaged in the insurance business, and solicited appellee to insure her said property, and at the time learned from her that a part of the property owned by her which was to be insured had been purchased by her on the installment plan, and that she did not then have an absolute title thereto; that said Kehoe procured the policy in suit from said agents of appellant, delivered the same to her, and received from her the premium of $50, out of which he was paid a commission by said agents; that said Kehoe had, for some time prior to this transaction, obtained insurance for appellant through said agents in the same way this insurance was procured; that appellee made no representations as to her title to said property, except the statement aforesaid, and no further information was sought from her; that appellant was in no way misled or deceived by any statements or representations made by her; that appellant's agents had knowledge of the character of appellee's title to the property insured at the time the policy was issued; that the policy had been in force almost two years at the time the fire occurred; that shortly after the fire occurred an adjuster of appellant called upon appellee, looked over the property, and...