Gibson v. Miami Valley Milk Producers, Inc.
| Decision Date | 31 July 1973 |
| Docket Number | No. 2--1172A112,2--1172A112 |
| Citation | 299 N.E.2d 631,157 Ind.App. 218 |
| Parties | Don GIBSON, Appellant (Plaintiff Below), v. MIAMI VALLEY MILK PRODUCERS, INC., et al., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
John T. Lorenz, John E. Konowitz, Indianapolis, for appellant; Kightlinger Young, Gray & De Trude, Indianapolis, of counsel.
Curtis S. Travis, Indianapolis, for defendants-appellees, Miami Valley Milk Producers, Inc., Harold Wright, Joe Sollars, Howard Linn and Miami Valley Milk Producers Assn.; Royse, Travis, Hendrickson & Pantzer, Indianapolis, of counsel.
Theodore R. Boehm, Rory O'Bryan, Indianapolis, for defendant-appellee, The Kroger Co.; Baker & Daniels, Indianapolis, of counsel.
On February 28, 1968 the Plaintiff-Appellant, Don Gibson, filed a complaint in four legal paragraphs in the Superior Court of Marion County, Room 3, in which the Miami Valley Milk Producers, Inc., The Kroger Company, Harold Wright, Joe Sollars and Howard Linn were designated as party defendants. In each paragraph the following allegation was made:
The record discloses that service was obtained on Miami Valley Milk Producers, Inc. by service on its resident agent Harold Wright in Muncie, Indiana.
The essential allegations of the complaint are:
'5. The Defendants, Joe Sollars and Howard Linn, are agents, servants and employees of the Defendant, Miami, and serve in the capacity of field representatives, and at all times mentioned herein were acting within the scope of their agency.
6. That prior to February 28, 1966, the Plaintiff was the owner of various milk routes and as a part of said business hauled milk from the producers of said milk on the routes owned by the Plaintiff to various dairies in the State of Indiana, and elsewhere.
7. That the plaintiff and the various producers on the milk routes owned by the Plaintiff entered into agreements from 1958 and thereafter covering the pickup of the milk at the producers location and delivery to a dairy where said milk would be processed into milk and other dairy products and said agreements further provided for compensation paid by the producer to the plaintiff computed on a basis of the weight of the milk hauled by the Plaintiff.
8. That the Plaintiff has from the date of the aforementioned agreements until their termination performed said agreements completely.
9. That the Defendants, and each of them, knew of the substance of the agreements between the Plaintiff and the milk producers on the routes owned by the Plaintiff.
10. That the dairy or milk processor would compute the total due the milk producers for the milk and deliver to said producer a check deducting the amount due to Plaintiff in accordance with the agreement between the Plaintiff and the producer and said dairy, or other processor would then deliver said amounts to the Plaintiff.
11. That on or before February 28, 1966 and thereafter, the Defendants intentionally and maliciously entered upon a course of conduct to destroy the contractual and business relationship between the Plaintiff and all milk producers who had agreed with the Plaintiff to haul their milk, all without justification or excuse.
12. That on February 28, 1966, the Defendants, Miami, sent a letter to all their members who were the producers on the milk routes owned by the Plaintiff. Said letter is attached hereto and made a part hereof and marked Exhibit 'A'. That the said letter contained facts which the Defendant, Miami, knew were not true or knew that said letter contained misrepresentation of facts.
13. That said letter, in the second to the last paragraph thereof, stated that the Defendant, Miami, would secure another hauler for the producers who had entered into agreements with the Plaintiff.
14. That the Defendants (other than Miami, including an agent, servant, and employee of Kroger, whose name is well known to the Defendant, Kroger, but not to the Plaintiff and at all times mentioned herein acted within the scope of his agency) at the request of Miami, and on their own behalf, after the letter referred to above was sent by the Defendant, Miami, made personal calls upon the milk producers, who had entered into agreements with the Plaintiff to haul their milk and reasserted the false and misleading statements contained in the letter of February 28, 1966. That, in addition but not limited to, the Defendants, and each of them, asserted that the Plaintiff or his employees had lost their license to haul milk, that the dairy that was purchasing the milk of the producers would not accept milk from producers who the Plaintiff hauled for, and that the Plaintiff had quit hauling milk.
15. The Defendants and each of them further threatened the producers with expulsion form the Defendant, Miami, if they did not agree to terminate their agreement with the Plaintiff.
16. That as a result of the intentional and malicious interference of the Defendants, and each of them, as hereinabove mentioned, many producers switched haulers from the Plaintiff to another hauler designated by Miami, thereby causing great loss of income and profits to the Plaintiff and as a result of the conduct of the Defemdants, and each of them, Plaintiff's business has been reduced by at least forty (40) per cent.
17. That, further, as a result of the intentional and malicious interference of the Defendants, and each of them, Plaintiff has suffered injuries to his business character and reputation and has been humiliated, embarrased and has been an object of public ridicule in his community.'
This complaint has attached to it as an exhibit, a letter on the stationery of 'Miami Valley Milk Producers Association' with an address at Dayton, Ohio. Count I of said complaint purports to allege a claim for interference with contractual and business relations, Count II for libel, Count III for slander, and Count IV for conspiracy in restraint of trade.
Between February 28, 1968 and February 24, 1972 the parties engaged in filing numerous dilatory pleadings and engaged in discovery. During this time Appellant also amended his complaint in several particulars not relevant here. The complaint alleged that the misconduct of the defendants designated occurred on February 28, 1966. The amended complaint filed on May 9, 1969 also alleged February 28, 1966 as the date of the defendants misconduct. On February 24, 1972 the Appellant filed a motion to amend said complaint and alleged in part:
'Plaintiff, due to defendant's answers to plaintiff's interrogatories, moves to amend his amended complaint in the following particulars:
1. To amend by adding the defendant, 'Miami Valley Milk Producers Association' as a party defendant to the caption of the complaint.' (our emphasis)
The amendment then proceeded to assert the claims that had previously been stated against Miami Valley Milk Producers, Inc. against the newly added defendant, Miami Valley Milk Producers Association. In a second amended complaint filed on February 25, 1972 the misconduct of the defendants is, for the first time, alleged to have been on February 28, 1966 'and thereafter' although the factual allegations are consistently the same as in the original complaint and the first amended complaint. The assertions in the complaint when considered in the light most favorable to Appellant rest on a letter dated and mailed on February 28, 1966. After the second amended complaint was filed February 25, 1972 and service was had on the Miami Valley Milk Producers Association by certified mail, return receipt, to said association at 320 Marley Road, Dayton, Ohio.
On March 16, 1972 the Defendant-Appellee, The Kroger Company, filed its motion to dismiss which stated:
'Defendant The Kroger Company respectfully moves the Court to dismiss the second amended complaint pursuant to Rule 12 for the following reasons:
1. This Court has no jurisdiction over the subject matter of the claims alleged in the complaint.
2. The plaintiff has failed to join a party needed for just adjudication under Rule 19.'
On March 17, 1972 the Miami Valley Milk Producers, Inc. filed its motion to dismiss said second amended complaint which, it pertinent part, reads as follows:
'1. To dismiss the complaint because it appears on the face of the complaint that the court lacks jurisdiction of the subject matter in that said action is barred by the statute of limitations.
3. To dismiss the complaint on the ground that the court lacks jurisdiction over the person of the defendant in that no service of process was ever issued against the defendant nor ever served upon it.
6. To dismiss the action because the complaint fails to state a cause of action against this defendant upon which relief can be granted.'
On April 4, 1972 the Defendants-Appellees Wright, Sollars, Linn and Miami Valley Milk Producers Association filed a motion to dismiss the second amended complaint which, in relevant part, stated:
'(2) The Court has no jurisdiction over the subject matter of the claims alleges (sic) in the complaint.
(3) The plaintiff has failed to join an indispensable party needed for just adjudication under Rule 19(A)(1) in both the original and First Amended Complaints prior to the expiration of the statute of limitations.'
On March 22, 1972 Plaintiff-Appellant filed a pleading labeled 'Motion for Change of Venue' which stated:
'Pursuant to Indiana Trial Rule 75(B) of the Indiana Rules of Civil Procedure the plaintiff, Don Gibson, respectfully moves the Court for a change of venue from this Court to the Circuit Court of Marion County.'
On April 19, 1973 the trial court made the following entry:
'Defen...
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IN INTEREST OF TF, 20030236
...new rules effect only a remedy and not a vested right, they may be applied to pending litigation. See Gibson v. Miami Valley Milk Producers, Inc., 299 N.E.2d 631, 641 (Ind. Ct. App. 1973). [¶40] The majority opinion states that under the circumstances in this case, fairness and justice warr......
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Elliott v. Roach, 2-777A280
...Circuit Court in all cases and upon all subject matters, . . . ." IC 33-5-35.1-4(a)(1). See also Gibson v. Miami Valley Milk Producers, Inc., (1973) 157 Ind.App. 218, 234, 299 N.E.2d 631, 640, where it is suggested in dictum T.R. 75 would in any event give the superior court jurisdiction ov......
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Chrysler Corp. v. Alumbaugh, 3-1173A152
...judgment failed to set forth facts showing compliance with the conditions prescribed in the rule. In Gibson v. Miami Valley Milk Producers, Inc. (1973), Ind.App., 299 N.E.2d 631, the court noted the relevance of federal decisions construing Federal Rules of Civil Procedure 15(c). Following ......
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Berns Const. Co., Inc. v. Miller
...Siegler, Inc. (1984), Ind., 471 N.E.2d 299; Bowling v. Holdeman (1980), Ind.App., 413 N.E.2d 1010; Gibson v. Miami Valley Milk Producers, Inc. (1973), 157 Ind.App. 218, 299 N.E.2d 631, trans. denied. The addition of a third party to the lawsuit constitutes a new and independent claim which ......