Ayr-Way Stores, Inc. v. Chitwood

• Decision Date: 23 August 1973
• Docket Number: AYR-WAY,No. 873S162,873S162
• Citation: 300 N.E.2d 335,261 Ind. 86
• Parties: STORES, INC., and the E. T. Rugg Company, Appellants (Respondents herein), v. Randall Scott CHITWOOD, a minor, by Michael T. Chitwood, his next friend, Appellee (Petitioner herein).
• Court: Indiana Supreme Court

Page 335

300 N.E.2d 335

261 Ind. 86

AYR-WAY STORES, INC., and the E. T. Rugg Company, Appellants (Respondents herein), v. Randall Scott CHITWOOD, a minor, by Michael T. Chitwood, his next friend, Appellee (Petitioner herein).

No. 873S162.

Supreme Court of Indiana.

Aug. 23, 1973.

Rehearing Denied Oct. 3, 1973.

Keith C. Reese, William T. White, Jr., Rocap, Rocap, Reese & Young, Indianapolis, for Ayr-Way Stores, Inc.

Emerson Boyd, Robert F. Zoccola, Locke, Reynolds, Boyd & Weisell, Indianapolis, for E. T. Rugg Co.

Forrest Bowman, Jr., George E. Martz, Martz, Bowman & Kammen, Indianapolis, Parr, Richey, Obremsky, Pedersen & Morton, Lebanon, for appellee.

HUNTER, Justice.

This is an action for personal injuries brought by Michael Chitwood on behalf of his four-year-old son against the manufacturer and seller of a power lawnmower. The jury returned a verdict in favor of the plaintiff in the sum of $80,000. Defendants appealed to the Court of Appeals for the First District. Ayr-Way Stores, Inc. v. Chitwood (1973), Ind.App., 292 N.E.2d 298.

The primary issue raised on appeal was whether the trial court erred in granting Chitwood's motion to amend his complaint to conform to the evidence during trial. The defendants maintain that if to allow the amendment was not error, then they were entitled to a continuance to meet the new issues raised by the amendments. The Court of Appeals agreed with the defendants and reversed the trial court. The cause was remanded for a new trial in order to avoid 'trial by ambush.' 292 N.E.2d 302.

The facts disclose that on May 30, 1966, Michael Chitwood purchased a riding lawnmower from Ayr-Way. The mower was in a sealed carton which was placed in Chitwood's car by the employees of Ayr-Way. Instructions were inside the carton. This particular model had a single pedal which operated as both a clutch and a brake. After attaching the steering wheel and adding gas and oil to the engine, Michael Chitwood, assisted by his brother, Wayne, began to mow his lawn. The mower appeared to operate satisfactorily in forward gear. Releasing the foot pedal caused the machine to stop. Wayne Chitwood began mowing in the back yard. Coming to the junction of two sidewalks, he stopped the mower, put it in reverse gear, and started to back up. When he looked over his shoulder he saw the plaintiff Randall Chitwood, standing behind him. He released the pedal, but the mower continued to move, running over the plaintiff. This resulted in permanent and severe injuries to the four-year-old child, including amputation of the great toe and distal head of the metatarsal bone on his left foot and severe lacerations to his lower lumbar region and buttocks.

Chitwood's complaint was in two paragraphs, alleging breach of express warranty and negligence as to both defendants. Trial commenced on June 2, 1971. At the close of the plaintiff's evidence, Chitwood moved to amend his complaint pursuant to Trial Rule 15(B), IC 1971, 34--5--1--1. The amendment consisted of two additional paragraphs alleging strict liability and breach of implied warranty. The trial court granted Chitwood's motion and denied the defendant's motion for a continuance.

The Court of Appeals held that the defendants had not impliedly litigated the added issues of strict liability and implied warranty. Therefore, the failure to grant a continuance was prejudicial to the defense because they were forced to defend two entirely new issues without sufficient time for preparation. We do not agree.

Trial Rule 15(B) reads as follows:

'(B) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.' (Emphasis added.)

Prior to the adoption of our present Rules of Trial Procedure, the Indiana Appellate Court was faced with a procedural issue analogous to the one in the instant case. The case was General Outdoor Advertising Co., Inc. v. LaSalle Realty Corp. (1967), 141 Ind.App. 247, 218 N.E.2d 141. Plaintiff's complaint was grounded on a contract theory, but the proof introduced at trial, without objection, was in negligence. On appeal, the issue before the court was whether the pleadings could be amended to conform to the evidence presented. The defendant-appellant contended that the variance was fatal to the plaintiff's claim. The court answered:

'It is firmly established that a lower court can amend the pleadings before or during the trial regardless of the factor that a change in the cause of action might result . . ..

'(I)t appears that the state of the law is that a party may amend his pleadings before or during the trial even though the cause of action is changed subject to the discretion of the court. However, there is no absolute limitation on the court's discretion in permitting amendments merely because the cause of action or theory of the complaint is changed. The decision to grant or deny an amendment is to be left entirely to the discretion of the lower court. Barring a clear abuse of the lower court's exercise of such discretion, there will be no reversal on appeal for either a denial or granting of the requested amendment. Perhaps it is pertinent to comment that in the early cases decided after the new civil code had been adopted when the majority of the judges had been trained under the principles of common law pleading, many amendments were refused because the theory of the case or cause of action would have been changed and such was assumed to be prejudicial. See Lewark v. Carter et al. (1888), 117 Ind. 206, 20 N.E. 119.' 141 Ind.App. at 253--254, 218 N.E.2d at 144.

Similarly, in Morrison's Southern Plaza Corp., et al. v. Southern Plaza, Inc. (1969), 252 Ind. 109, 120--121, 246 N.E.2d 191, this Court reiterated:

'. . .. We now turn to the Appellate Court's second reason for reversing the judgment of the trial court, that 'the plaintiff cannot allege one cause of action and recover on proof of another . . .'

'This rule could only find support in the common law theory of issue pleading. As early as 1852, Indiana enacted the New York Field Code. One of the primary purposes of this new code was to replace issue pleading with fact pleading. To accomplish this purpose, the code provided that the complaint need only contain 'a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' Ind.Ann.Stat. § 2--1004 (1967 Repl.) It is true that, even under the Field Code, Indiana has required a plaintiff to plead a definite cause of action, and, if more than one theory is to be alleged, the complaint must still be drafted in separate paragraphs. Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 41 N.E.2d 947. We take judicial notice that the 1969 General Assembly has enacted a new Code of Civil Procedure which is to take effect on January 1, 1970, (House Enrolled Act No. 1733). This new code, as regards the pleadings in a civil action, closely parallels the 'notice pleading' enunciated in the Federal Rules of Civil Procedure and currently used by the federal district courts. It must be presumed that the trend and expressed legislative intent is one of simplifying the procedure of pleading.' (Emphasis added.)

It cannot be denied that the policy behind Trial Rule 15(B) is to promote relief for a party based upon the evidence actually forthcoming at trial, notwithstanding the initial direction set by the pleadings. Moreover, in the instant case, Chitwood sufficiently pleaded facts in his original complaint which should have put the defendants on notice as to the evidence to be presented at trial. The amendments did not alter the factual theory of plaintiff's claim for relief. In his original complaint, Chitwood alleged that Rugg manufactured a defective lawnmower, that his father purchased the lawnmower from Ayr-Way, and that the defect caused the lawnmower to malfunction resulting in his injuries. It is cogently clear that more than one legal theory supports recovery under these facts.

Even without amendment to the pleadings, the trial of the issues of strict liability and implied warranty would have proceeded absent any objection from the defendants on the grounds that the offered evidence was outside the pleadings. No such objection to evidence was made here. It is when a party objects to evidence because it is outside the issues raised by the pleadings that the question of the utility of a continuance arises.

In their motion for a continuance, defendants merely raise a general allegation of prejudice. They do not carry their burden of pointing out to the trial court in what way they have been denied substantial rights. Certainly there are times when an amendment of the pleadings would require the granting of a continuance. But in such a case, the party moving for a continuance must show that allowing the amendment would prejudice his rights in maintaining his action or defense. Defendants Ayr-Way and Rugg have not carried that affirmative burden in this case. The Court of...