Volume 146 — Indiana Appellate Court Reports

1. SUPREME COURT RULES — <italic>Appeal — Summary of Record and</italic> <italic>Evidence.</italic> — Supreme Court Rule 2-17 provides that on appeal it shall be sufficient that appellant provide a summary of the record and evidence thus eliminating the need for a separate section in appellant's brief containing the entire record or bill of exceptions. p. 592. 2. ACTIONS — <italic>Misjoinder — No Reversal for Error.</italic> — Burns' § 2-1009 specifically provides that no judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action. p. 593. 3. CONTRACTS — <italic>Liability Clause for Litigation Costs —</italic> <italic>Insurer's Duty to Investigate.</italic> — Rather than merely looking to the complaint filed against an insured, an insurer should determine its liability under a litigation indemnification clause by facts ascertained from a reasonable investigation. p. 600. 4. CONTRACTS — <italic>Insurance — Judicial Interpretation.</italic> — The rules of construction of both the Appellate and Supreme Courts require that insurance contracts be construed most favorably to the appellee. p. 600. 5. CONTRACTS — <italic>Pleading and Practice — Insurance — Question of</italic> <italic>Liability Raised by Demurrer.</italic> — Although the general rule is that the insurer's liability and duty to defend under its policy, requires the insurer to look to the allegations of the complaint and also make its independent investigation of facts, an exception arises where the<page_number>Page 584</page_number> question of liability is raised by demurrer. The exception exists because in considering the question raised by demurrer the court can only consider the demurrer and pleadings before it. Thus an investigation could not be made available at that time even if one had been made. p. 604. 6. PLEADING AND PRACTICE — <italic>Appeal — Error in Overruling</italic> <italic>Demurrer — Prejudice Required for Reversal.</italic> — Where the erroneous overruling of a demurrer to an amended complaint is found not to be prejudicial to the demurring party because the amendment was only made in order that the complaint might conform to the proof, reversal of the trial court is not justified. p. 606. 7. PROCEDURE — <italic>Summary Judgment — Purpose.</italic> — The basic purpose of summary judgment is to provide a procedural device for a prompt disposition of cases where there is, in reality, no genuine issue of fact to be determined in the trial either by a court or a jury. p. 607. 8. APPEAL — <italic>Review of Evidence — Extent.</italic> — In reviewing the sufficiency of the evidence presented at trial, the court, on appeal, accepts as true all facts and all proper inferences which the jury might draw from the facts, that are calculated to sustain the verdict. Conflicts in the evidence and the credibility of the witnesses will not be reviewed. p. 609. 9. PROCEDURE — <italic>Directed Verdict — Existence of Controversy.</italic> — A directed verdict is not proper where there is evidence given to support both sides of an issue in controversy. The issue is one for the jury to decide. p. 610. 10. CONTRACTS — <italic>Construction of Insurance Agreement —</italic> <italic>Ambiguities.</italic> — The construction of a contract is the sole responsibility of the trial judge and the construction of the contract is not to be considered by the jury, except where the contract is so ambiguous that it may be susceptible to more than one construction. It is the duty of the jury in the case of an insurance contract containing an ambiguity to resolve the ambiguity against the insurance company. p. 612. 11. INSTRUCTIONS — <italic>Non-Prejudicial Error.</italic> — The giving of an erroneous instruction does not require reversal if no prejudice results from the giving of the instruction. p. 617. 12. CONTRACTS — <italic>Settlements of Disputes Without Litigation.</italic> — The law favors compromise and settlement of disputes between parties where no fraud or deception has been practiced and where the agreement is understood and freely and voluntarily made and entered into. p. 618. 13. APPEAL — <italic>Evidence — Scope of Review.</italic> — It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law. p. 619.<page_number>Page 585</page_number>