*1 policy parts insurance put brief the lant his However, controlling may case. such conten- be ascertaining deprives tion, obviously, court of whether this hand, for In case at could be not other drawn. inferences been, probably were, may instance, have there understanding “exclu- policy are in common what known appel- us in Now, before without this clauses.” sion any exclu- brief, whether we unable to determine lant’s are and the considered the court sion could or were clauses arriving jury in at in this case. the verdict Hunter, hereby affirmed. the trial court is Pfaff, J.J., Kelley concur. Reported in 769. 192 N. E. 2d
Note. — Company v. Mutual Motorists Insurance Johnson, Admrx. Rehearing September 28, 19,476. July 14, 1966. denied Filed
[No. December 1966.] Transfer denied *3 Boyd, Locke, Reynolds, Boyd Robert C. Riddell and Emerson Counsel, Weisell, Indianapolis, White, Christian, of and & of Klotz, counsel, Noblesville, appellant. of & of for Waltz Indianapolis, Dowling, M. of Russell Richard- Addison I. Lebanon, Noblesville, Campbell, Frank W. son, of and Lebanon, Campbell, Richardson, Campbell, Stewart Noblesville, Kyle, EwbanJc, Malcm & and Albert W. counsel, Indianapolis, appellee. for separate parties P.J.1 —Two trials involve the Wickens, brought Appellee wrongful matters here. a first suit death judgment against decedent her and recovered William Farley Allegations complaint and William Gammon. that Farley are that owned a motor vehicle and Gammons was operating Farley’s knowledge consent, it with when he carelessly Judgment struck and killed the decedent. was against, both of these defendants. action by appellee appellant, second was a suit company. among appellee, insurance In it other state- charged
ments, appellant that Farley insured and his auto- public liability provided mobile for as for in certain insur- policy; ance appellee judgment against that had obtained the Farley, mentioned, Gammon and was un- paid despite payment insurer; demand for made on the legally obligated pay became and liability exceeding $15,000. Also, alleged insured appellee provided attorneys insurer appeared had who first Farley, action for had appear but refused to so for and defend Gammon.
By insurer, appellant, answer in the suit second admitted coverag*e contract insurance but asserted that was voided Farley by forth, as to his certain acts set which conduct cooperate to failure to amounted and violation of terms. special alleged As to Gammon answer that he failed to giving opportunity tender his defense thus insurer no cause or him, and, therefore, protection to defend no was extended to policy. him
A resume of the operating facts shows that Gammon was *4 by Farley by the motor vehicle owned appel- which was insured Appellate 4, 1963, 1. For Court of October see: Motorists Company Johnson, Mutual Insurance v. 192 N. 2d 769. E. opinion May 18, 1964, Court of For see: Motorists Mutual Company Johnson, v. Insurance 198 N. E. 2d Ind. struck killed. In- appellee’s decedent was and lant at the time promptly conducted of the accident and surer was informed investigation. his Farley reported his insurer that vehicle to Gammon, being permission. by a state- his was without used accident, days that after the told the insurer ment taken a few permission Farley to use vehicle. he did have the Nearly appellee by years commenced later suit was two against Farley deposition was The of Gammon and Gammon. again asserted, oath, taken and under after that Gammon now permis- operating express he was motor vehicle having Thereafter, appearance Farley, no sion the owner. suit, the insurer Gam- been entered for Gammon in this wrote advising representation mon he entitled him that was not to might by employ counsel, judgment it and he did not that if against represented rendered him. Thereafter Gammon was personal proceedings. by counsel original began, Farley first
When the of the action at trial although appear, failed to been the trial he had informed of by engaged separate attorneys date three letters from the concluded, by But, trial him the insurer. before the was Farley appeared response subpoena re- at the issued attorneys engaged quest plaintiff-appellee. Then the subject provisions insurer undertook his defense rights by written insurer. On the witness stand reservation changed Farley story did have his testified and Gammon permission his the time accident. to use the vehicle at juries appellee tried and each were Both actions judgment. general recovered a there is from the appeal taken first
No finality judgment against Gammon question of the said no cause Farley. appeal confined to second here is It therein insurer. entered decision action verdict, sufficiency of the evidence to sustain questions the contrary law, and certain instruc- verdict whether the objection, given appellant’s and the refusal over tions *5 give by appellant. instructions tendered court to certain other contrary or is not sus- to whether the verdict is to law As evidence, proper arrive at a un- tained sufficient we must derstanding questions by appellant. of the raised out in kind where fundamentals stand a case of this
Certain recovery injured person on a ob- an seeks he has against person pro- tained an insured and therefore is ceeding against directly company. In an insurance general, injured person legal in the is the shoes policy requirements, insured. If the insured has violated the precluded against injured person recovery the would from be company, But, the if insurer a condition insurance the waived part insured, precedent on the such condition is waived right injured person the the so far as recover from Likewise, estopped insurer involved. if an insurer is insured, estoppel a certain defense to an action the assert injured person. precludes use such defense 2d, Insurance, 575; p. 574, 7 Am Jur Automobile §225, Appleman 4811, p. seq. L. P. Ins. & 164 et § requiring cooperation provisions had usual person respect provisions of an claims. The insured pertinent we believe are: cooperate and, company with the “. upon and shall assist evidence, obtaining . insured shall . The hearings request, trials attend and company’s shall settlements, securing giving effecting witnesses and attendance of . . .” conduct of suits. accident, or written an occurrence “. . . In the event of given by on behalf of the insured to notice or shall be agents prac- company any of authorized as soon as or its particulars contain sufficient to Such notice shall
ticable. reasonably identify tion informa- obtainable the insured also time, respecting place of the of the and circumstances accident, occurrence or the names addresses injured and of available witnesses.” brought against in- “. . . If claim is made or suit is sured, immediately com- the insured shall forward to the demand, every notice, process pany summons other representative.” by him or his received de- sometimes been Policy provisions nature have of this part liability precedent on clared to conditions Compliance in the absence is essential the insurer. permit a in order to excuse or a a sufficient waiver Mut. policy. Farm recovery Lomont v. State on the E. 2d App. 645, 151 N. Auto. Ins. Co. Ind. cooperation often inconsequential A lack of technical or co- lack of policy and the held avoid the been insufficient to *6 operation substantial must be in some to be sufficient Non-cooperation ma- respect. material must Prejudice by insurer. Am Jur terial. must 7 be shown 508, 509, 2d, insurance, 181, p. See 176, 517. Automobile §§ 1138, 60 R. 2d also: A. L. Farley,
Considering concerns the situation here as it very way insured, cooperation in material named failure of a hardly necessary be is demonstrated. think We Farley com point. labor that failed to hold that We ply obligations appellant. De with his contractual (7 247, 245, 248 Company, Rosa v. Aetna Insurance 346 F. 2d ; 779, 1965) Stanley, 775, Potomac Ins. Cir. Co. v. 281 F. 2d 780, (7 1960). 781 Cir. reported Farley he first told the truth when
Whether permission his sworn not have or whether did his Gammon have testimony Gammon did trial to the effect that at the true, misled the permission is at one time or the other he disadvantage very matter. essential company to its agreement complete with those authorities are in We cooperation clause where there is a breach hold that intentionally information of furnishes false the insured at the Elliott either or trial. a material nature before F. Metropolitan York, New 250 Casualty Ins. Co. v. 1231, 1235, (10 1957), 2d 1236 680, 66 A. L. R. 2d 683 Cir. 774; 762, 932; 2 Ed. Ocean L. 2d 78 S. Ct. den. 356 U. S. cert. Lucas, 115, Corporation 74 F. 2d 117 v. Accident & Guarantee 1464; Paanenen 1934), 1461, v. Salonen (6 98 A. L. R. Cir.
629 230; Quisenberry 227, 568, 571, (1947), 71 N. E. 2d Mass. 453; (Mo. 450, v. 1956), Kartsonis S. 2d Sutera W. v. Super. 345, 340, J. Provident Ins. 171 A. 2d Co. N. 554, 562. appellant-insurance com-
thenWe must consider whether insurance, became, for the pany contract liable under the operates an judgment against a driver Gammon. If person permission named the insured auto with the policy, “insured” the driver then becomes provisions policy. under provides: question
The named unqualified word ‘insured’ includes “. . . [T]he using any person the automobile . . while insured . any person organization responsible use legally for the by or thereof, provided with use the automobile is the actual permission . . insured. named provision commonly “omnibus quoted from called origin. policy. statutory To extent it some clause” p. 588, ch. Burns’ Acts §177, §39-4309 Replacement. recent Clause —Con-
For a detailed discussion of Omnibus *7 seq. sent, 4 A. L. 10 see R. 3rd et protection enacted the this statute was that
It is said for the party and the injured insured third of the Supp. Sumney, 185 Fed. Barker the insurer. v. protection of 1960). (N. D. 298, 301 Ind. generally been has purpose clause of the omnibus “The Thus, being liberalizing
recognized one. it has said a been as liability purpose clause to extend insurance of the is the that permis- coverage persons other than the owner who had arbitrary and definite restric- use car without sion to the Insurance, 2d, Am7 Jur Automobile on such use.” tions 109, p. 420. § provision liable for Gammon’s makes insurer This Farley. permission of driving driver if his status as was 630 judgment appear
The first trial and to constitute a determina- question. issues, tion of that Permissive use was within complaint having alleged: “4. place That at said time and defendant William said driving consent, per- Gammon was said car with the full authority Farley.” mission and of said William Farley expressly paragraph The answer of 4 denies of the complaint appear and Gammon’s tran- answers do not
script permission but it is assumed an issue on complaint. Gammon, formed on the As to under that jury effect issue the that found verdict is authority Farley operate Gammon had the vehicle. finding Farley’s change in Whether such was a result of story, jury or whether it was because the believed Gammon knowledge is no moment. Since the insurer had proceedings appear general judgment it would ad- such judicated permissive the issue of use. “Ordinarily, liability by result insurer bound of had notice of litigation against insured, provided litigation opportunity proceedings. such and an to control its Applemen (1962). ...” 8 P., 4860, p. L. & 289 Ins. § judgment against “Where there been a valid final insured, establishing aged by liability injured his or dam- one conduct, usually accept his the insurer must such
judgment conclusively establishing liability. . .” . Appleman P., 11521, p. (1962). Ins. L. & § ordinarily required protect “It is true that one who is to the liability by litiga- another from is bound result party, provided tion to which such other is a the former litigation had opportunity notice and an to control proceedings. judgment against its A party indemnified is only conclusive a suit his indemnitor as to the estoppel facts therein established. The created the first beyond cannot be extended necessarily the issues Casualty determined it.” Hoosier Company v. Miers 400, 403, 404, Ind. N. E. 2d 342. Applying considering solely those rules in the Gammon matter, phase of this we hold and find that the insurer had *8 litigation. opportunity to con- It had notice by any proceedings, was not harmed and it trol cooperation part In accord on the of Gammon. lack Casualty Judge Hoosier Tremain in the with the against Gammon, party to be case, supra, appel- indemnitor, indemnified, conclusive his estoppel to the issues neces- limited The thus created is lant. permissive matter, which, include sarily determined this use. liability to it appellant’s that no attached
But stand theory that Gam- further on reason of Gammon is based company. In to the insurance not tender his defense mon did language appellant’s it is said: “ attorney ever forwarded either he nor his [N] of his any request for or tender made summons
defense.” might provision policy looked in for a have vain We define a “tender of his defense.” policy require more in ten- little think the terms of the
We general dering expressed more word than a defense pro- “cooperation.” importance of all such necessary all knowl- is that the insurer obtains visions edge negotiate, claims. advisedly defend and settle policy if may compliance the terms of the Failure breach defense, materially adversely affects failure handling Here, however, we other of claims. settlement or disadvantaged by the to find that the insurer was are unable strictly comply may have failed to that Gammon fact policy provisions. said, implies not con-
Cooperation, an abstract it has been pragmatic question deter- to be formity conduct but to ideal light particular facts case in in each mined Farm, Automobile Ins. Co. v. Mutual State circumstances. (9 1956), A. L. 2d Palmer, F. 2d Cir. R. *9 ; Detroit, Winget, Standard Acc. Ins. Co. Mich. v. 1145 97, (9 F. 1952), 250, 2d A. Cir. L. 2d 258. R. possible estoppel by We also have here the waiver and the having insurer declined to defend Gammon. As noted we before, against Farley when suit Gammon and had been pending for represented some time and Gammon was not by counsel, the case attorneys he received a letter from for the insurer. At that time insurer had the con- received flicting opportu- statements of the two defendants and it had nity investigate to Evidently knowledge the facts. from its then, it Farley believed and disbelieved Gammon. There are other permitting facts and circumstances one to believe story. electing either However, Farley, to believe it wrote Gammon a letter which attorneys informed him that these representing Farley were pending suit because of his policy insurance with and it said: knowledge “. . . To appearance our no entered has been you for under the in either cases, policy of these because such does not any coverage circumstances you. extend . . .” (Our emphasis.) letter, evidence, This ample justify was more than jury finding insurer provi- had waived the strict policy estopped sions of require per- and was formance. As to a refusal to defend of the because assumption erroneous of an insurer the claim is policy coverage, outside of it has been said: “The fact that the refusal of the insurer to ac- defend an tion actually insured based on a claim within the coverage assumption policy results from the insurer’s erroneous coverage, policy that such claim is outside the although based on an honest insurer, mistake of con- unjustified stitutes insurer Automobile rendering nevertheless an refusal liable breach of 2d, its contract.” 7 Am Jur Insurance, 166, p. § provisions
Contractual policy may of a be waived or may estopped the insurer asserting from relying upon provision. ‘estoppel’ practi “The extend to doctrines ‘waiver’ and cally every ground upon may deny which an insurer liabil
ity.”
(1941),
Travelers Insurance
v.Co.
Eviston
110 Ind.
143, 154,
App.
79 Ind. EN. .329. Words or an conduct of insurer in- inconsistent rely requirements they policy, tention to on the if requirements lead the into insured belief that those upon, will be insisted suffice to constitute waiver. *10 Encyc., Insurance, p. 464; Ind. 16 Law §268, §337, p. 366. though
Even the case Lomont v. Farm Auto State Mut. Co., supra, complying Ins. policy provi that holds with the relating sending insurer, sions the summons to etc. are precedent, conditions such conditions have been held waived any liability where the insurer policy. denies the The under letter mentioned here could constitute such denial so far as Gammon is involved. American Income Kindle Ins. Co. v. sparker (1941), 517, App. 527, 110 Ind. 37 E. Also N. 2d 304. 24, 188, see: 7 Am Jur Insurance, p. Automobile 527. § precedent It is also true strictly that conditions are con against an strued insurer. Stout v. Commercial Union Assur (C. 554, 555, 1882),
ance Co. 12 Fed. C. D. Ind. 11 309; Norways Biss Sanatorium v. Co. etc. Hartford (1942), App. 112 248, Ind. 44 E. 2d N.
Many by appellant comply are cases cited on failure to constituting precedent. as These conditions distinguished readily are also from the in that instant case most such cases exhibit facts can that from be said vitally affecting no insurer had notice of matters its interests. pointed out, Lomont, supra, in p. As at 652 company first received insurance App. Ind. there the in- action unnamed its existence
notice happening of accident.” eight years after “over sured knew comparison here the insurer can be made where No inception. pending since its almost action was giving Appellant assigned and refusal as error also made of the give mention is instructions. General certain objections appellant’s and the giving of over ten instructions by appellant. give These 13 instructions tendered refusal individually pointed there out the discussed nor is are objection the in- particular to each or the difference between by appellant, given the court and those tendered structions requirements appellant entitled to which are would be before opinion on a detailed instructions. various only Appellate consider such errors as are Court will pointed appellant’s out in brief. Chadwick et al. v. Baughman App. 305, et Ind. al. N. E. 2d 588.
Assuming argument appellant’s of the instructions to com- (e), Supreme Court, ply with Rule 2-17 Rules we will general questions only discuss the instruction the same vein they argued argued by appellant. objection The first were in connection a whole with instructions *11 estopped it “did and to not waive was not assert its defenses.” conformity in think were the of We the instructions law estoppel and herein above mentioned. We find that waiver properly sufficiently the trial and submitted to the court estoppel questions jury the matters waiver as factual particular the case. evidence this under objection Appellant’s last to second and the instructions stating that court erred in the the appears to be a whole as appellant’s refusing appellant’s and in to defenses state theory of the case. in Without the benefit of a recital argument showing appellant’s section brief some particular application of the tendered instructions to a definite theory given it by any is claimed in- was not covered struction, disadvantage we are at in some this examination. viewing However, jury the instructions as unit we think given was fair properly resume in- case relating including structed to the as law to the whole case by appellant. defenses asserted judgment
As related, we have appellant could permitted be dependent not to stand if on the it were alone original against Farley. ques- decision To the extent that tion has been raised we have considered whether the failure trial court prejudicial to so error state constitutes appellant. findWe no such reversible hold that error and we error, determining any, relieving jury such if whether could held liable reason of the eon- Farley, dut appellant. was not harmful opinion We are of has not been established contrary the verdict was to law or was not sustained prejudicial appellant oc- evidence or that error sufficient curred in the instructions.
Therefore, hereby affirmed. Bierly, Carson,
Smith, C.J., Hunter, Prime, J.J., concur. Mote, J., Faulconer, in which dissents with J. concurs.
Dissenting Opinion Mote, J. —I wish to dissent. Section Article provides of Indiana Constitution that: power in a judicial shall “The be vested State Court, courts Circuit Courts and other may March Assembly the General establish. amended [As 14, 1881.]” *12 provides that: Article of said Section three than of not less consist shall Supreme Court “The form shall majority of Judges; whom five more than nor they years, if for six offices They their hold quorum. so shall long behave well.” provides that: Article 4 of said Section jurisdiction, co-extensive have Supreme shall Court “The of error State, appeals and writs in the limits of with pre- may be regulations restrictions under such jurisdiction original such also have law. It shall scribed as Assembly may confer.” the General provides that: 5 thereof Section every shall, upon decision Supreme Court “The arising writing question give each case, in the in a statement case, of the Court and the decision record of thereon.” con- Supreme Court,
By on the 1891 the burden very great. judges, It was became limitation of five stitutional coming position be- in matters to maintain a current unable growth population; in had business fore it. There been a legislative Assembly, in its on increase. General Supreme attempt relief to the and in an furnish wisdom load, dispatch deci- in order to excessive its Court original jurisdiction, appeals, as well as matters sions this, Appellate of Indiana. Court created provide and in further creation in order its Since appeal and re- the accumulated mass of cases on relief from Assemblies, time, have in- from time to view, the General eight, judges provided number this court creased the they by divisions, assignment to and decision of cases enactment, by legislative or areas of altered, the fields have assigned court, only to this but to law 4-209, 4-202, 4-207, 4-208, particularly as well. See Court §§ Annotated, 4-214, Burns’ Indiana Statutes 4-212 and Supplement. Pocket wisdom, legislative
In Assembly, its the General also enactment, jurisdiction has established the of this court as except final statutory 4-215, under the conditions of Burns’ § Annotated, part, Indiana Statutes as follows: *13 jurisdiction final, Appellate “The of the Court shall be except following under the conditions: division are of the Supreme “First. Court is If in any case, erroneous, opinion two the [2] case, a ruling precedent of with a written state- the judges of either of the opinion, ment of the reasons for such transferred shall be Supreme to the Court. petition rehearing any “Second. If a by for a is filed losing party any in case in either of said divisions of the Appellate petition overruled, Court and said is the clerk of opinion certify judgment said court shall not the in said [30] case days to the from the date of said lower court until the ruling. expiration of thirty 130] days any may, party thirty* at time within Said petition rehearing overruled, a his has been for file after * Supreme petitions Court, By Rule of the 2-23 transfer shall be days twenty (20) petition rehearing- after a for filed within has been briefly: petition denied, shall set forth which said Appellate “(1) Court That the decided the case with a written giving- opinion opinion, filed; the date when the was
“ Appellate (2) decision of the That the Court was the seeking transfer; party the “(3) petition rehearing Appel- That a for was filed the with rehearing denied, giving time and that a late Court in was date of such denial. the “(4) opinion Appellate of the That the Court: (a) ruling precedent Supreme Court, contravenes a of the indicating ruling precedent; the
(b) Appellate or that the Court errone- ously deciding question concisely law, a new of stat- ing same; the Appellate (c) give or that the Court failed to a state- writing question arising ment in of each substantial on the record and the decision of the Court thereon. on, petition If is relied this cause the shall set out record, assignment or so exhibit much of the of errors, opinions affirmatively briefs and will dis- petitioner close such failure and establish that the prejudiced thereby.” application the Supreme Court the of in transfer for opin- the ground Supreme the on Court to the the case Appellate contravenes the Court division said ion ques- Court, a new Supreme or that precedent ruling the erroneously. decided directly and was involved is law tion of ground or particularity the state with application shall application seeking party to file such grounds relied on. The the filing, deposit clerk of the shall, time such at the fifty dollars deposit sum the Supreme a cash Court Upon cash filing application, and said of such the [$50.00]. lower court certify to the deposit, opinion shall the clerk Appellate judgment said division appli- denies Court Court, and until unless fifty deposit of the said application be denied If the cation. paid clerk the successful shall be dollars [$50.00] defrayment of ex- parties appeal for party or briefing parties party penses or incurred said application be appeal. incidental other costs to the If Appellate Court granted said division of deposit vacated, cash thereby full amount of said and the making appli- party parties be returned to the shall supplied.) (Emphasis cation.” *14 recognized of Acts fully the enactment It is that since 2-4718, 1937, 91, p. 459, Indiana Statutes 1, ch. Burns’ (§ of § Supreme Court, annotated) interpreted by the that: and as any procedure relating in practice and to “All statutes in, have, force and remain state shall of this the courts of and Supreme shall provided. Court only The as herein effect of court adopt, and rescind rules amend power to have procedure in practice and govern control and shall which all the courts of this promulgated and state; to be such rules Supreme shall Court rules as take effect under such to be in conflict therewith shall adopt, all laws and thereafter act purpose of this The force or effect. of no further Supreme to to Court 2-4718, to enable the 2-4719] [§§ proceedings; and pleadings simplify and abbreviate and causes; remedy such abuses of expedite the decision practice; may to exist imperfections as found plead- in unnecessary and technicalities forms all abolish unnecessary and fictions ing practice and to abolish and p. 1937, 91, 1, 459.]” ch. proceedings. process and [Acts § vesting however, power, permit This rule adoption does not rules which will abolish the substantive law of the state. In Square Company D 49, v. O’Neal 225 Ind. E. 72 N. 2d 654, Supreme Court said: change “. . . This court cannot a rule substantive law nor Assembly legislative could the General vest us with such
power.” Supreme adopted Court heretofore and has to, time, amended and added from time to “Rules of the Su- preme which, Court” held, often has been have the force express objective law. We observation that at least some of said rules are neither nor they clear have fol- been lowed any degree consistency. adhered to with A myriad opinions have apparent been handed down in an clarify effort to at least adopted by some of the rules so Supreme Court, but the net effect thereof has been a lack of consistency expressed application. rules, Some of the at least, leave much to be desired in nicety the matter of of ex- pression clarity. This is respect true with to Rule 2-17. Interpretations of Rule 2-17 have been such that there has diversity opinion, been a wide only expressed in its meaning, sense and in consistency application. but also As result, be, opinion, there can in our an honest difference of opinion judges lawyers concerning between meaning, depth 2-17, breadth and of Rule application as well as its given any facts case. case, by opinion In the instant May its filed ren- dered on Court, stated, transfer to the among it is things, Appellate other that “The Court’s does not suggest provi- omitted substantial verbatim *15 any part sion of policy, says of (the Appel- relevant but Court) might deprived late have been ascertaining whether ‘of or not other inferences could be drawn’ from part some other (Emphasis supplied.) the contract not set forth.” It will appeal be remembered that this is entirely based ex- and in the contract, only parts of which are clusively on the lawyer responsible would briefs, suggest no we that having before attempt interpretation an of a contract without pertinent instrument, all data rela- as him the as well entire including by-laws therein reference thereto, to which tive made. and thereto have been policy, we provisions” contract
Under “mutual said force, provision: is in find this “While this and, such, company is member of the named insured is a by-laws provided by the privileges entitled to the company.” quoted provision con- mean? We
What the last above does know; however, that infer- do insist that we fess we do not legi- appellee to and favorable ences unfavorable drawn, particularly timately in the absence could be suggest company. by-laws We record and consonant would be consistent conclude otherwise objective question on approach to the solution convictions, appeal. continuing cannot violate we With such accept jurisdiction office, oaths nor we our can Supreme once cause transferred Court. petition finally rehear- overruled a Court
When this given jurisdiction. deci- ing case, this Court loses given Supreme in a cause is final until unless sion jurisdiction Court, petition, cause to its on transfers quoted, in provisions of above cited and under statute finally exclusively event, jurisdiction reposes court. cases, My position supported number stated Chesapeake Railway Company among & v. which are Ohio 683, 670, 137; N. 2d N. E. 2d (1961), 241 Ind. E. Burk Company I. Case v. 245 Ind. and J. Sandefur 2d N. E. page case, 691, point at our Court
In the Burk stated: *16 Having accepted “. . . the case this court transfer of obliged originally to consider the pre- case were if appeal. sented court to this on ...” (Emphasis supplied.)
In case, Supreme Court found this Sandefur right Court had upon no decide case the technical ground that the administratrix could not be substituted as party plaintiff “erred and we thereby and that this Court (the Supreme Court) grant must in this therefore transfer case.” Supreme up took Court then the merits case and rendered a decision and therein accord- supra, ance with its As in the Burk case, own determination. “obliged it, Court, the case as consider originally presented appeal.” it were . . . on if jurisdiction Court, opinion, my With lack of firm this should not consider this matter further.
Faulconer, J., concurs. Reported in 218 2d N. E. 712.
Note. — City Albany. et al.
Combs v. New 20,389. July 15, Rehearing denied [No. Filed September 8, 1966. Transfer denied December 1966.]