Consumers' Co. v. Ruble

Citation122 N.E. 607,69 Ind.App. 617
Decision Date25 March 1919
Docket NumberNo. 9757.,9757.
PartiesCONSUMERS' CO. v. RUBLE.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Lake County; W. J. McMahan, Judge.

Action by Byron R. Ruble against the Consumers' Company. From a judgment for plaintiff, defendant appeals. Affirmed.McKinley, Hansen & Schmauch and W. W. Schmauch, all of Chicago, Ill., for appellant.

Otto J. Bruce and W. Vincent Youkey, both of Crown Point, for appellee.

REMY, J.

This is an action to recover damages for personal injuries sustained by appellee while in the employ of appellant company, and alleged to have been caused by appellant's negligence in failing to provide appellee a safe means of exit from his place of work, in consequence of which he stumbled over, and fell upon, a cake of ice while he was upon, and about to leave, appellant's premises. The case was tried on an amended complaint of one paragraph. Issues were joined by appellant's answer in denial, and a trial by jury resulted in a verdict for appellee. After verdict appellant filed a motion, with supporting affidavit, to strike out a part of the complaint. This motion was overruled, as was a motion for a new trial. These rulings of the court are the only assigned errors.

The motion to strike out sets forth that on May 21, 1915, the day when the amended complaint was filed, an attorney for appellee mailed to attorneys for appellant a copy thereof; that neither the original amended complaint at the time it was filed, nor the copy thereof mailed to appellant's counsel, contained the words, “and the said company then and there had in its employ more than ten men engaged in such employment”; that the amended complaint was thereafter altered by the insertion of said words without leave of the court, and without notice; that appellant's counsel filed answer and entered upon the trial of the cause without any knowledge that the amended complaint had been so altered; that the first intimation of such alteration came to appellant's counsel when the court instructed the jury as to the nature of the action; and that appellant's rights were greatly prejudiced by the alteration of the complaint, for the reason that the theory of the complaint was thereby changed from an action at common law to an action under the Employers' Liability Act (Laws 1893, c. 130). In opposition to appellant's motion to strike out, appellee filed a counter affidavit stating, in substance, that the original amended complaint, when filed, contained the words sought to be stricken out; that no alteration in the complaint had been made; that by inadvertence the words complained of were omitted from the copy mailed to counsel for appellant, but that appellant's counsel knew, or ought to have known, that the complaint contained such allegation, because with the copy of the amended complaint delivered to them through the mails were certain interrogatories, answers to which were to be filed with appellant's answer, one of said interrogatories calling for the number of appellant's employés.

[1][2][3] It will be seen that appellant did not aver in its motion to strike out that the alleged alteration or amendment of the complaint was made after answer was filed. A complaint may be amended without leave at any time before it is answered. Section 403, Burns 1914; Frankel v. Garrard (1903) 160 Ind. 209, 66 N. E. 687. As against the action of the trial court, motions, as well as pleadings, strictly so called, must on appeal be construed most strongly against the proposers thereof. Chicago, etc., R. Co. v. Kreig (1899) 22 Ind. App. 393, 53 N. E. 1033. The trial court did not err in overruling the motion to strike out. If the motion and supportive affidavit had affirmatively shown the alteration to have been made after answer, and without leave, our conclusion would have been the same, for the affidavit and counter affidavit would have presented an issue of fact for the trial court, the decision of which is not subject to review on appeal. Schnurr v. Stults (1889) 119 Ind. 429, 21 N. E. 1089.

[4] Appellant seeks to present as a reason for a new trial, the same question raised by the motion to strike out. It is charged that appellant was deceived and misled, and prevented from having a fair trial, because of the alleged misconduct of appellee's counsel as set forth in the motion to strike out. Unfortunately for appellant, timely objection was not interposed....

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2 cases
  • Booher v. Alhom, Inc., 1--872A39
    • United States
    • Indiana Appellate Court
    • May 14, 1973
    ...disturbed unless there is a manifest abuse of discretion. Dudley v. State (1970), Ind., 263 N.E.2d 161. See also, Consumers Co. v. Ruble (1919), 69 Ind.App. 617, 122 N.E. 607. Reigenour was apparently the only corporate employee with first hand knowledge of this incident. Permitting Reigeno......
  • Consumers Company v. Ruble
    • United States
    • Indiana Appellate Court
    • March 25, 1919

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