300 N.E.2d 335 (Ind. 1973), 873S162, Ayr-Way Stores, Inc. v. Chitwood

Docket Nº873S162.
Citation300 N.E.2d 335, 261 Ind. 86
Party NameAYR-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).
Case DateAugust 23, 1973
CourtSupreme Court of Indiana

Page 335

300 N.E.2d 335 (Ind. 1973)

261 Ind. 86

AYR-WAY STORES, INC., and the E. T. Rugg Company, Appellants

(Respondents herein),


Randall Scott CHITWOOD, a minor, by Michael T. Chitwood, his

next friend, Appellee (Petitioner herein).

No. 873S162.

Supreme Court of Indiana.

August 23, 1973

Rehearing Denied Oct. 3, 1973.

Page 336

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.

[261 Ind. 87] 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,

Page 337

Randall Chitwood, standing behind him. He released the pedal, but the mower continued to move, running over the plaintiff. [261 Ind. 88] 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...

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