*1 Vaughn time, working “Q. Mr. at that you While were the odor occasion to detect you have did breath? alochol on his Yes, I smelled it.” I believe “A. province opinion that was within are of
We given testimony weight to be rela- jury to determine intoxicating liquors and inferences to the effect of tive intoxicants, any, if therefrom, the effect of relative to drawn appellee. by the consumed his trial court did abuse discretion find that
We overruling appellants’ motion a new trial. affirm the decision of the
Finding error we no reversible court. trial
Judgment affirmed. J., Mote,
Smith, C.J., concur. J.,
Hunter, concurs result. Reported in 220 E. 2d 851. motion to dismiss N. On Note. — rehearing reported in 213 N. 2d 470. On reported in E. officer 2d 551. 215 N. E. Company College America. Insurance
Stucker July 7, Rehearing 19,832. denied Filed 1965. [No. 8, 1965. October 1966.] November Transfer denied *2 counsel, Millen, Arthur J. L. Sullivan David Klee, Sullivan, appellants. Steers, Jay Indianapolis, & for Breen, George Jeffrey, Emison, B. B. and James John Rabb Jr., appellee. Indianapolis, appellee’s trial demur- J. —The court sustained
Faulconer, *3 amended, complaint, rer as amended to fourth complaint,” interlineation, to “amended hereinafter referred as and, further, judg- upon appellant’s plead entered refusal to appel- nothing appellant that and that ment take her action lee recover costs. ruling on the
Appellant court to reconsider its moved the by the demurrer, was overruled court. which motion judgment appeal and errors aforesaid is from the This sustaining appellee’s in de- assigned 1) the erred are court and, 2) complaint; court erred murrer to the amended sustaining of overruling appellant’s to in motion reconsider complaint. Appellant appellee’s to demurrer presenting assignment the same of errors as treats the two presents pertaining thereto. one and issues to paragraphs, referred two The amended was alleged, paragraph I II. first thereof as Count and Count ap- 15, 1951, substance, March that on or about in material princi- office and corporation with its home pellee, Indiana an Indianapolis, Indiana, its executed pal place business policy Lyle insurance on the life of D. Stucker considera- premiums; tion of certain annual that the terms of the policy, appellee agreed pay beneficiary thereof the $10,000 upon sum of receipt at proof its home office of due insured; the death of the appellant, Stucker, Marian Ford insured, as the wife of the beneficiary policy; was of said day that on the 16th of October, 1952, the said insured “died in Korea as a result of Country bullet wounds received in the of Korea while the service of Nations”; the United appellant necessary proofs furnished with the and, although premiums death there were no due on the policy duly appellant performed provisions and had all policy, appellee pay conditions refused to the face Prayer amount of $10,000, was for with interest per per annum, at six cent copy and all other relief. A part attached was made a of the amended complaint. paragraph
The second complaint alleged the amended indemnity provisions the double provided of said payment $20,000 if the death the insured resulted independently directly, causes, bodily of all other through injury solely external, effected violent and accidental alleged It 16, 1952, means. further that on October while Lyle serving said D. Stucker was in the armed forces of the Country Korea, Nations United he died as a result of wounds; bodily bullet injuries insured sustained directly accidental, effected means, violent and external engaged “while in the Korean Country Action in the injuries Korea,” from which he Korea”; died “in and that serving said “while in the armed forces of the United Nations, killed result wounds received in the *4 Action.” Korean furnishing appellee proofs
The to of due of the accidental insured and death the refusal of pay were alleged. Prayer $20,000, also with interest per at six per annum, and all cent other relief. Exclusion policy “Aviation and War Risk contains an ordinary benefits of applicable to the death
Provision” alleged paragraph appellant’s amended in the first policy as provision pertinent part, complaint. In said exclusion provides:
“If death of the Insured injury
“(1) disease contracted Results from received or war, outside the Home Area as Insured is result while months after in war or within six service service; of such or termination payable beneficiary policy “the amount to the under this single paid equal premiums actually shall on this interest at the rate of three be sum policy any returned, compound less dividends per per any annum, cent less policy; however, paid indebtedness on the shall not be more than would be the amount so payable absence provision, this aviation and war risk nor than less the valu- ation on reserve on the life insurance benefit in this any plus any dividend additions value dividend deposits “ any and less indebtedness on the forty-eight means states of the United ‘Home Area’ Columbia, Canada, States, the Dominion District of Territory Territory and the of Alaska. the means Hawaii ‘War’ any war, war, or act of declared or undeclared. ‘War being military, means naval or air forces of service’ any country, clared or undeclared. organization, war, or international de- any provision shall be included “This this which changed policy may be converted. provision modify “This shall aifect or the terms of Indemnity Disability may Double Benefits which policy.” included indemnity Pertinent double benefit relied paragraph complaint, the second policy provides indemnity pay- that the double benefit shall be if the death able directly,
“(1) independently resulted of all other causes, bodily injury solely through effected ex- ternal, violent, means, and accidental *5 ninety days injury. “(2) after such occurred within apply Indemnity if In- Benefit shall not the “This Double sured’s death military, naval,
“(1) or air occurs while the forces of any Country war, undeclared; declared or “ (2) by or contributed to is caused war.” challenged Appellee’s paragraphs demurrer both of the ground complaint on the amended that the same do not state a facts sufficient to constitute cause action. appellee’s
The memorandum to demurrer Count I complaint forth the Aviation Risk sets and War affirmatively appears Provision and avers it Exclusion allegations paragraph of the from first of the amended complaint injury death from insured’s resulted “an Country from bullet wound received of Korea and outside the ‘Home Area’ as result of war while in war serv- ice,” Area,” the definitions “Home within “War” and “War defined in Service” as the aforesaid Aviation and Risk War Exclusion Provision. appellee’s
The memorandum to demurrer II of Count complaint provisions the amended forth sets the aforesaid applicable indemnity to the double benefits and affirmatively appears allegations it avers from the II of the amended Count the insured’s death serving military, Korea “while occurred [he was] country air of a naval or forces at war” and that his death war Country “was caused contributed Korea.” allegations presented here
The real issue is whether the complaint, I and II the amended Count Count admitted demurrer, bring the insured within the terms of the ex- provisions of said clusion appellant urges argument,
At the outset that the “Law of govern obligations should with re- Colorado” appears spect to the insurance here involved. It insurance, application executed for the gave his residence as dated March that was Colorado, County) (Delta and his school Box Delta Remington, Collins, Ft. address as 714 Colorado. application application also shows that with gave $208.50, paid one-half a note for insured cash $10 September 15, one-half 1952. November due due application provisions is: One *6 agent of premium paid if at the time the is the “[T]hat making Company I application the is and the satisfied acceptable ap- [applicant] was an risk the insurance plied for, the of the insurance shall be effective as of the date application in conditions accordance with the terms and n Receipt bearing contained attached to and the same application.” (Emphasis supplied.) serial number as this policy The states that it was issued on March conclude, application. the same date as that of the there- We Colorado, fore, the the of was made in State by appellant claims. claim not contested Such is differ, however, appellee parties in its brief. The question governs obli- the of the whether the law of Colorado gation appellee policy. of under the by question materiality latter mentioned arises Supreme Colorado, of a decision the of of a statute reason sup- appellant in is cited and relied of Court Colorado thereby governed in that we must be port her contention of policy above interpretation the clauses” of the of “war our of is as referred to Colorado follows: forth. The statute set doing company foreign insurance accident Colorado, “Any life or the insurance and where of the in state business obligations pay state, its when shall made in this is contract county agent through its payable are due same the_ gen- made, at office of the its the contract where approval by proper state, agent the after within eral officers at the of company, upon presentation office of the home proofs required thereunder contract the insurance assigns or beneficiaries. This insurance by the payable made and be deemed to be the shall contract Colorado, through agent of if made state an authorized Company state, irrespective such Insurance within this may the where insurance contract written.” Anno, 22, p. Rev. Colo. Stat. Vol. ch. Art. § 957. Simply provides stated, said statute that where an insur- foreign ance contract is made the State of Colorado insurer, company doing therein, insurance the business upon presentation proofs re- contract and the the due, quired obligations thereunder, pay shall its when approval company proper the after thereof officers through office, agent county at its home its where agent made, general contract was with- at the office of its nothing quoted State. the terms We see within impose upon section us the statute which seeks adopting any particular the insur- duty of construction of juris- contract, applying the certain ance or of law arriving to the herein contested conclusion as diction “obligations” fact, appellee as we under In “obligations” Act, under construe said ap- payable do not become due and until same are appellee. proved “by proper officers at the home office” *7 heading (Emphasis supplied.) Under of “General Pro- the policy, provides of visions” the Clause 13 thereof that the appellee, premiums paid, office” of “home where to be the aré city Indianapolis, of “in the Indiana.” is obligations interpret of theory the Upon that we “will the of to the decisions the Courts with reference upon Colorado,” heavily the appellant and relies cites Company Masch Pyramid Insurance v. case Life 70, appears (1956), P. It Colo. 299 2d 117. 134 insured, Masch, that father of the in case the decision pri brought insurance contract to recover the action on the indemnity latter The mary and benefits double that in of the death of the insured a condition case contained in military or of war . . . naval service time service “while 430 liability company premiums be shall limited
paid. private . . .” The while a in the United States defendant-company Army, killed in Korea. The South a to state moved to dismiss the because it failed granted. relief could motion was claim which be The company appealed. the trial court and the The overruled construing meaning particular Court in Colorado it, before concluded war clause contained “ politi- of a of war is a he existence nonexistence state [T] cognizance cal, question,” judicial judicial, and not a and that may a formal declara- a “state of war” taken when be Congress. tion of war has been made Pyramid case, Supreme at of Colorado in the Court page 2d, 119 299 stated: P. “Any meaning concerning doubt of word or clause a life insurance should be resolved favor of contin- insured. Had the gency desired to cover the defendant simple here it involved would have been a matter to proper include words to indicate that ‘war’ meant ‘hostili- Congress ties,’ whether or not declared to be a state of (Emphasis supplied.)
war.” Pennsylvania (1953), Beley Also, in Mut. Ins. Co. denied, (Cert. 36 L. R. 95 A. 2d A. Pa. 346), support 98 L. Ed. cited for 74 S. Ct. U.S. adhering case, Pyramid the constitutional and likewise interpretation cir theory of a similar clause like under holding cumstances, Korean after Conflict was “in the terms the war risk clause time “war” within court, page 2d,A war,” at 205 of 95 said: therefore, may assumed, if had defendant “[I]t connota- invest term with a broader here meant to ‘war’ intendment, ‘legal’ its would tion than ‘constitutional’ indicating by the words effected this addition have as, example, an intention ‘declared or undeclared’ such war.” Judge concurring
Also, Musmanno, opinion, page in a 2d, said: 95 A. *8 phrase Beley had included the contract “If the insurance is, indubitably war,’ Korean Conflict which the ‘undeclared Conflict, the Korean problem have arisen because no would indubitably sense, is an undeclared in the constitutional war.” light the clauses in decisions In the of the distinction of present policy, by appellant cited and the clauses considering Pyramid and references made in the further Beley possible explanation, we feel that words cases specifically Pyramid by appellant, and those cases cited controlling case, are not in the case at bar. allegations think, question, that we can no
There complaint definitely I show Count Area,” injury outside the “Home his fatal insured received Risk in the Aviation and War Exclusion is defined that term regular primary The ad- Provision goes point of whether by appellant vanced alleged facts of the amended show the admitted war, injury fatal “as a result of received his the insured “War” as defined in said service.” ... war while any “war, war, act of declared or unde- provision means “being military, means in the “war service” naval clared” and country, organization, or international or air forces allegations pertinent war, declared undeclared.” complaint are that the insured died as a result the amended Country of Korea in the while service wounds bullet Nations. the United argument,
Appellant’s
advanced
from the al-
whole
aside
governed by
ready disposed
contention
we
must be
Colorado,
“[bjefore
is
the effect that
law
legally
with-
Action can be considered
as war
Korean
meaning
United
of the Constitution
States
Congress
recognized
and declared as a war
must be
“Congress
which, appellant states,
...
States”
the United
so.”,
further,
and,
day
fit to do
its wisdom seen
has
“
legally speaking,
only mean,
declared
can
service’
‘war
*9
Appellant
according
Supreme
war service.”
asserts
Court of Indiana “a
can war
when so
state
affairs
be
legally by
judicial depart-
declared
political
not
the
the
ment,”
Rogers (1871),
and cites Perkins
twofold. plaint that the United States was involved in the “Korean Ac- 16, 1952, tion” on October or that at the time injury, miliary, fatal there in the his naval or air forces States; and, Second, of the United to referred exclusion provision policy not, by expression, does the word limit any country. to “war” following language find the in New
We Stankus (1942), 366, 368, Ins. York Co. Mass. E.N. pages 688, 689: contract, in the case of other an “As the words of policy, ambiguity, insurance absence of be must given ordinary meaning. their usual and The term ‘war’ is limited, anything appearing not or restricted modified particular type war, It refers no or kind of general applies every ordinary but situation that regard people in commonly nothing would as war. There is indicates the word was used [war] ambiguous any vague, A indefinite sense. provisions plainly definitely whose are ex- insurance pressed appropriate language must enforced ac- exempting cordance with its terms. We hold that the clause liability defendant from where death is caused war operation is not restricted in its to death that has resulted being prosecuted from a war the United States.” defining service,” In exclusionary “war clauses regular policy provide expanded country “any reference organization (Emphasis international supplied.) at war.” In language specific view of this and the definitions of the terms employed, perceive we fail to applicability, the fact under allegations of the complaint, contention Congress formally of the United had de- States *10 complaint clared war. The puts amended in the the insured armed forces of Nations, appellant the United but advances argument any no or discussion nor makes reference to the legal consequences alleged regards of such fact as the in- exclusionary provision. volved Pyramid Nor is the case of v. Company Insurance Masch, supra, 134 299 Colo. Life upon by appellant, P. 2d relied of assistance to her on point because, complaint the mentioned last in the in that alleged it the case was that insured was a Private Class First military Army” “the service of was United States vicinity Hangye, And, likewise, killed in the of South Korea. Beley Pennsylvania Co., supra in the case of Mut. Ins. (1953), 373 Pa. 95 A. A. L. R. 2d also upon by appellant, appears it Beley, relied the “serving contingent was with the United States United the was Nations forces” when he “killed” in action in Korea. (Emphasis supplied.) is observed, It from in- the herein (Lyle application, Stucker) gave he D. sured’s his occu- pation of student and his as that address Remington, Collins, Colorado, Ft. and that he “Janitor was a Bldg., Campus.” Military nothing But we find policy amended or in the insurance which avers serving military or shows the insured was the arm his when he received forces United States branch injury. fatal brief, after set- her
Appellant, section her pertinent allegations II of ting I and Count Count forth applicable portions ex- complaint and the two that, clusionary provisions, concludes appears ques- foregoing, without therefore “From following: tion, the Lyle Appellant, died on Oc- Stacker, “That husband Country of 16, 1952, received in the of bullet wounds tober Korea serving Na- forces of United while in the armed tions, appellee time had full force effect which including upon Stucker, insurance life of said indemnity clause, payable Appellant as benefit a double beneficiary. presented thus to this Court and the Court “The issue demurrer, may simply by Appellee’s below, as raised stated: set clause’ exclusions as forth the ‘war “Do Appel- life of executed of insurance lant’s occurring apply in the case of death late husband serving by him received while bullet wounds Nations in the Korean ?” forces of United Action armed appellee confine
Appellant and themselves in their briefs exclusively except question point sole which *11 are then law controls. We left to
State determine alleged Action,” in the “Korean the amended whether “war,” undeclared, complaint, was declared as appellee’s policy. in said exclusion clause is used term particular question help no on us this Appellant offers mention of in section of no her brief makes say with reference to the Korean Action the except to that Congress never declared it of the United States has a war. challenged allegations com- Under necessary to find that the United is not States was plaint it
435
war;
sufficient,
passing upon
it is
whether
the amended
complaint
action,
whether,
states
cause of
to find
October
on
16, 1952, a war existed
Korea
between North
and South Korea
(referred
to in the amended
as the “Korean Ac
tion”).
expended
setting
Much time and
labor could be
detail,
herein,
forth
the factual situation which establishes
quite clearly
16,
October
North Korea and South
Korea'
actually
were then
at war
each
other. Several
cases contain
general
support
extensive facts on this
to
issue
Metropolitan
conclusion. Thomas
Insurance
Life
v.
Company (1957),
600;
388
2d
Pa.
131 A.
v. New
Stankus
Co., supra
York
(1942),
Ins.
E. 2d
Mass.
44 N.
Life
687; Lynch v. National
and Accident
Insurance Co.
Life
(1955),
App.
Mo.
We consider it to sufficient state that to the De- August partment Report 19, 1953, of Defense the United 139,834, casualties in the Korean Conflict totalled States 25,604 Also, were whom killed action. than more one members million armed forces the United States engaged July 25, 1950, 27, 1953, July were Korea from the cost of the conflict the United States was about Billion Dollars. $22
Many Courts State of last resort have been called interpret Pyramid “war risk” similar clauses and, circumstances, under the case same some have followed interpretation Pyramid the so-called constitutional as in the Beley majority However, cases. have held that simi larly worded clauses under like circumstances should be in terpreted in their broad sense and Korean Conflict Langlas within “war” such clause. v. Iowa Ins. Life (1954), 885; Co. Iowa 63 N. 2dW. Carius v. New Company Insurance C., York (1954), Supp. D. 124 F. Life 338; Lynch National v. and Accident Insurance Co., Life supra (1955), App. 32; Mo. 278 S. W. 2d v. O’Neil Union Company (1956), National Insurance 162 Neb. Life Metropolitan 739; Thomas N. W. Insurance Com- *12 486 499, 600; supra (1957), 2d O’Daniell Pa. 131 A.
pany, 388 v. 10, E. App. 2d 164 N. (1959), 24 Ill. Insurance Co. Missouri (1953), 78; Pennsylvania Ins. Harding Co. 2d Mut. Life v. 2d Annot., 36 L. R. 270, 221. A. 373 Pa. 95 A. 2d See also: (1954). 1018 risk
In courts have dealt with war some recent cases the considering having similarity to are clauses more the ones we they “declared undeclared” in that contain words defining following, preceding the term “war” either we All of this nature which used in said clauses. cases “unde interpreted the Conflict as an can find have Korean provision Goodrich clared exclusions. war” within said (1962), A. D. Hancock Mut. Ins. Boston 17 John Co. Life v. 587; Hancock Mutual 271, 2d 234 2d Lamar v. John N. Y. S. 65; 643, 2d (1959), 249 107 E. Insurance Co. N. S. C. Life Equitable (1956), 2 Society Misc Assurance Wilkinson Life v. 1018; Mu 249, John Hancock 2d N. Y. Zuccardo v. 151 S. 2d Supp. 2d 75, 124 A. (1956), tual Insurance 20 Co. Conn. Life 926. Boston, Ins. Co. John Hancock Mut. In Goodrich Life v. page 2d at
supra, A. N. Y. S. (1962), D. said: court recognize reality but to far not so removed “We are average person, language conflict by war, considered a declaration but Korea was fact that our armed forces participated were there and sent fighting, our soldiers wounded and died were of Korea.” the battlefields Co., Lynch
In National and Accident Insurance page (1955), App. supra, Mo. 278 S. 2dW. court said: willing eyes inescapable to shut are not our “We ‘shooting engaged in
fact war’ United States clearly forcefully Korea, which is demonstrated military casualties inflicted members of the forces proof required . . . United States. What additional is conclusively grim consequences establish that such can result from a as that war term is understood in- ordinary understanding?” dividuals and common if concede, appellant strongly Even urges, we were to *13 holding that are we bound of the Colorado Court Pyramid Company in Insurance Masch, supra, no benefit would be derived spe- therefrom that because court cifically judicial states that it was asked to take notice that engagements troops” of “United States in Korea con- stituted war. pointed As we have out, heretofore no such question is here before us.
For this court to hold that the so-called “Korean Action” closing eyes was not a war would to the events our be our of and times world in which The we live. world chivalry abruptly in conflict between nations with the ended infamous attack on progress Pearl Harbor. The science may any thought art war has so far advanced that we opportunity entertain that our nation would an be allowed formally burying to certainly declare war is our heads reality. to sand machinery attacking another nation has the
Not disposed point virtually to of warn- refined a has been weapons power ing, attack destructive and their but devastating nearly incomprehensible. In this as to are so every resources, country, our of restlessness in world every being human, corner of the used in both material and possibly space, near into outer earth, and future recognize say To we as individuals. law must what know Harbor, Korea, the the action in activities the attack Pearl wars, Nam are not and killed were not those Yiet by war, saying, effect, is not war. killed is that war through- warning, police so-called actions without Attacks every a world, continent, service men on American are out way approve part life, life and a our whether we fact of every challenged Freedom for mankind is minute or not. day every and enemies are unconcerned with the formali- its they neces- any feel means to yesterday resort and will ties of goal. sary accomplish their desired contract agreed, in the written parties as stated here The means them, “war” into between entered insurance give effect to what must or undeclared.” We “war, declared agreed find fail expressly and we parties attention, which to our none has been called authority, and language parties, disregard express of the us authorizes contrary to the interpretation thereon place strained common under- parties expressed in words intent standing acceptation. exclusionary are provisions under surveillance here
The by public parties, in- unaffected private matter between the general governing the construction rules terest. determining and, applied contracts must be of such employed must be terms parties, intent ordinary popular interpreted in their *14 understood nothing before meaning. contract There is in the insurance meaning any in- special was or different us to indicate by parties, unreasonable an absurd or tended the or that interpretation applying ac- rule of attain in the result would meaning phrase- cording ordinary popular to the and wording ology used in the contract. and say justification that when the reason or no We see agreement expressed “war” herein parties to the fact, undeclared,” they did, war, “declared or meant authority. duly by proper If declared mean a war position say, be in the then we would to so we were parties. proper is not the remaking for the Such contract court. of this function ((1948), Durham New York Ins. Co. v.
In case Appeals 874, the 10), Circuit Court F. A. C.C. nearly identical a clause considered Tenth Circuit insured occurred after us, the death of the where before one enemies, official declara- before an of our but surrender formally terminating tion our Government the existence court, speaking through of a state of Judge war. Murrah, page 2d, 166 F. stated: parties case, case, “The in this as in the Bennion con- premium tracted with reference to a risk assumed for a paid. they express When came to the limitations assumed, they obviously risk risk extraordinary had in mind the military incident to service in forces of coun- try engaged war, including By declared or undeclared. war, they undeclared chose not to use the word in its ‘war’ sense, technical or formal practical but rather realistic commonly sense in which it is used and under- stood —in the sense it bears to the hazards to human life.” already said applies we have What determined equal exclusionary full and force to the war provision, above out, pertaining to the set contract liability limitation of indemnity for double provided benefits. It is therein indemnity apply that double benefits shall not if the insured’s death “is caused or contributed to war.” haveWe held that alleged the Korean Conflict complaint exclusionary provision was war. The does not restrict word “war” engaged. war which the United States is complaint alleges II of the amended Count deceased, bodily injuries “sustained affected di- [effected] rectly to accidental engaged violent and external means while injuries in the Korean Action” from which died on he October Thus, appears 1952. the amended the insured’s death was contributed to the Korean Action have held to be a which we war.
In opinion, insurance, our when which is the subject suit, issued, parties of this contracted with practical reference war in its real meaning, sense and *15 we, therefore, conclude neither Count I nor Count II appellant’s stated a cause of action for recovery Ordinary Death Benefit or the Double In- demnity Death Benefit of the insurance contract herein.
Judgment affirmed.
440 Carson, Smith, JJ.,
Bierly, C.J., Hunter, Mote and concur. P.J., Prime, concurs result. Judge hearing participated Martin of oral
While judges named, conference of the above he and a present participate in, of, not at the time and did not adoption opinoin. of this Rehearing
On For Petition Appellant purported petition has filed her Faulconer, J. — rehearing consisting allegations for twelve error. Each failing holding is a fiat conclusion that this court erred in or hold, ruling ruling, appellant or not as desired. Appellee petition petition has filed a to dismiss the for re- hearing complying as not 2-22, with Rule Rules of the Su-
preme Although Court. have we serious doubts con- cerning compliance rehearing petition of said for rule, opinion said petition with we are of that the given appellant to dismiss should be denied and the benefit compliance” of “sufficient Therefore, appellee’s the rule. with petition appellant’s petition rehearing to dismiss for is denied.
Specifications 2, appellant’s petition 3 and for merely rehearing sustaining state court erred in sustaining appellee’s demurrer; the trial court’s action sustaining overruling the trial court’s motion to ruling reconsider; law of did not Colorado control contract; giving and in the construction not full faith say credit to the laws Colorado. Suffice to that we care- fully sufficiently these issues and considered covered them opinion. our specifications 6, 7,
Appellant’s pre- grounds rehearing they present sent no new assigned questions appeal argued briefs, possible in addition to the comply failure requirements 2-22, supra. of Rule
441
rehearing only
rehearing
on
petition
should ask for a
for
A
hearing
presented
properly
at the first
points which were
City
Indianapolis,
improperly decided.
overlooked or
were
567, 582,
N. E. 2d
Wynn
(1959),
157
al.
239 Ind.
etc. v.
et
572;
Board
Tax
v.
Commissioners
159 N. E. 2d
State
(Transfer
Stanley
338, 340,
2d 624
(1952),
108 N. E.
231 Ind.
(1962),
denied) ;
Pub. Serv.
Daviess-Martin Co. etc.
Comm.
v.
App. 610, 625,
E. 2d
tion for many argument on We were concerned with lack issues, herein, filed and at oral both briefs elementary
argument, these issues can- but it is petition presented court not be first to on rehearing. duty to search Neither were we under a grounds assigned by appellant, error the record for not as argued by appellant, in order reasons reverse judgment of the trial court. part of error on the
Appellant the burden to show had authority assignment error, citation of court the trial cogent argument. Here, thereof, application and with appellant time, chose at our bewilderment much to argue only issues. two 2d, page N. E. opinion, in our stated
As we brief, her after section “Appellant, allegations II I and setting of her amended pertinent of Count Count forth portion applicable complaint and the that, exclusionary provisions, concludes two “ ques- appears foregoing, without it therefore ‘From following: tion, the “ Lyle Stucker, Appellant, husband of died Oc- ‘That Country 16, 1952, of bullet wounds received tober serving forces of the United Korea while the armed Nations, time had in full force and effect at which Stucker, upon includ- the life of said insurance ing indemnity clause, payable Appellant a double benefit beneficiary. “ presented and the to this Court ‘The issue thus demurrer, may sim- below, Appellee’s as raised Court ply stated: “ forth in the exclusions as set “war clause” ‘Do the by appellee the life of executed of insurance *17 occur- apply in case of death Appellant’s late husband serving ring him while bullet wounds received Korean in the Nations the armed forces of Action?’ United in their briefs appellee confine themselves “Appellant and point except question for exclusively sole to this left to determine are then controls. law We State which alleged com- Action,’ the amended the ‘Korean whether undeclared, the term is ‘war,’ plaint, used in said lant no mention declared policy. Appel- appellee’s clause of exclusion no question help particular and makes on this offers us except of her brief section Action the say the Korean Con- reference to . gress never declared it a war. . has of the United States thoroughly properly carefully considered the issues and We opinion court appellant. an of this presented If she desired rehearing petition she for contained in her these matters on court, only duty but the rules of under had not obligation presented appeal. on to have them our which recognize situation with readily can
One admit if we would confronted be appellate tribunals would argue present properly litigants failed issues which rehearing. granting petition for grounds for appeal to on raise, argue and opportunity to ample appellant had That appeal, those trial court decided, both have for re- petition in her time the first for now raised issues history case, and readily apparent from the hearing is she chose That herein. pleadings filed many briefs not determine. need question we ais until now so to do not ample in decid- to do work certainly have appeal courts Our ing many presented and varied issues that are to us being required speculate ques- without on what issues and should, could, presented tions been have but were appellant. reasons known rehearing
Petition for denied. Bierly, Prime, P.J., Carson, Hunter, Smith, C.J., Mote and JJ., concur. participating.
Wickens, J., not Rehearing Reported in E. 2d 208 N. 731. denied Note. — E. 211 N. 2d 320. et al. v. Miller.
McLochlin Rehearing 20,263. denied June 1966. Filed [No. September 7, 1966.] 1966. Transfer denied October