Huff v. Travelers Indem. Co.

• Citation: 266 Ind. 414,363 N.E.2d 985
• Decision Date: 22 June 1977
• Docket Number: No. 677S451,677S451
• Parties: Margaret L. HUFF, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
• Court: Supreme Court of Indiana

Page 985

363 N.E.2d 985

266 Ind. 414

Margaret L. HUFF, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.

No. 677S451.

Supreme Court of Indiana.

June 22, 1977.

Harry V. Huffman, Bobby Jay Small, Indianapolis, for plaintiff-appellant.

Timothy W. Woods, South Bend, for defendant-appellee.

OPINION ON PETITION TO TRANSFER

HUNTER, Justice.

Margaret Huff made a claim against Travelers Indemnity Company for freezing damage to her home which was covered by a homeowner's insurance policy issued by Travelers. The claim was denied and Huff brought suit on the policy. After trial, a jury returned a verdict for $6,000 in Huff's favor. Travelers moved for judgment on the evidence in its motion to correct errors. The trial court granted the motion and entered judgment for Travelers. From the memorandum in support of his order, it is apparent that the trial court entered judgment for Travelers on the basis that the jury verdict was clearly erroneous on the issue of waiver and estoppel as to certain provisions of the policy. The court also found that a new trial was merited, the weight of the evidence favoring Travelers on the issue of due diligence. Huff appealed and the Court of Appeals affirmed the trial court's decision. Huff v. Travelers Indemnity Co. (1975), Ind.App., 328 N.E.2d 430, rehearing denied, Ind.App., 333 N.E.2d 786.

I. Amended Answer

On February 28, 1972, Huff filed her complaint against Travelers. On March 27, 1972, Travelers filed its original answer denying certain paragraphs and affirmatively pleading that the insured 'did not exercise due diligence to protect the property from loss.' On July 30, 1972, Huff's husband died; he was also a plaintiff at the inception of this action. Travelers thereafter sought a summary judgment on February 23, 1973, raising for the first time that the insured had failed to comply with conditions precedent to the policy. The only condition specified was a twelve-month limitation on the bringing of suit. Huff moved to strike this motion on the grounds that the limitation was an affirmative defense not pleaded. Subsequently, Travelers sought to amend its answer on April 2, 1973. The amended answer asserted Huff's failure to give immediate written notice, failure to provide an inventory of the loss, failure to give a verified proof of loss within sixty days and failure to bring suit within twelve months of the loss. A hearing was held on the motion for summary judgment, the motion to amend and on Huff's motion to strike the motion for summary judgment. Subsequent to this hearing the trial court denied Travelers' motion for summary judgment and granted its motion to amend the answer.

The Court of Appeals ruled that any error in permitting the amended answer was not preserved for appeal by Huff since no objection to the motion was made by her. We agree with the Court of Appeals opinion on rehearing that even construing Huff's motion to strike and the affidavit of Travelers' local agent as a sufficient objection, the trial court did not abuse its discretion in permitting the amended answer.

Trial Rule 15(A) provides that pleadings may be amended once as a matter of course within thirty days after service of the pleading. Otherwise, and of greater moment to this case, amendment is allowed only by consent of the parties or by leave of court, and 'leave shall be given when justice so requires.' In its decisions on whether to permit amendments to pleadings, the trial court is vested with a broad discretion. Selvia v. Reitmeyer (1973), 156 Ind.App. 203, 295 N.E.2d 869; Civil Code Study Commission Comments in 2 Harvey, Indiana Practice 121 (1970). The policy generally and in this state is liberally to allow the amendment of pleadings, Higgins v. Swygman (1923), 194 Ind. 1, 141 N.E. 788, and leave to amend should be given unless the amendment will result in prejudice to the opposing party.

'Whether the amendment will result in prejudice to a party is of prime consideration in determining a motion for leave to amend. . . .

'. . . Indeed, unless there are complications arising by virtue of the statute of limitations, an amendment to the complaint may introduce a new or different claim.'

Harvey, supra, at 130.

Huff contends that she has been prejudiced by permitting Travelers' answer to be amended after the death of her husband. She states that since her husband died after the original answer and before the amended answer, there was an irretrievable loss of evidence with which to contradict the new defenses, much of the negotiation carried on with the local agent being done by her husband. Assuming that Huff's husband was possessed of evidence vital to her case, we cannot see how she is specifically prejudiced by the amendment of the answer. His testimony would seem to be equally material to a trial of this case regardless of the amendment. And it would seem that if a deposition had been possible, if, for example, her husband were known to be a 'going' witness, it would have been taken even if there were no amendment. Huff is no more prejudiced by the amendment than is anyone whose evidence disappears and is unable to refute a defense. There is no showing of any bad faith delay on the part of the defendant. Neither has Huff shown that anything could have been done by way of deposing Mr. Huff as a witness had a prompt answer preceded his death. The same reason to depose him existed prior to the amendment. The trial court did not exceed its discretion in permitting Travelers to amend its answer.

II. Judgment on the Evidence

Travelers moved for judgment on the evidence in its motion to correct errors, as provided for by Trial Rule 50(A)(4). Our rule governing the trial court's review of the evidence when considering a motion to correct errors provides:

'In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence.'

Ind.R.Tr.P. 59(E)(7) (emphasis added).

Similarly, our rule concerning judgments on the evidence provides:

'Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.'

Ind.R.Tr.P. 50(A) (emphasis added).

Both of these rules apply to the same situation commonly known as a judgment, notwithstanding the verdict. The Court of Appeals found that there was a difference between the standard employed by the trial court on a TR. 50 motion and a TR. 59 motion, stating with regard to the TR. 59 motion, 'On the other hand, when there is some evidence to support the jury's verdict, the trial court must determine if the jury's verdict is supported by sufficient evidence without weighing the evidence or judging the credibility of the witnesses.' Huff, supra, 328 N.E.2d at 433. There is certainly a difference in the language of TR. 50 ¹ and TR. 59. ² However, both rules apply where a judgment on the evidence is sought after the jury's verdict, since after the jury's verdict the motion may only be made in a motion to correct errors. Ind.R.Tr.P. 50(A). Although the language differs in the two, both rules mandate that the motion be granted when there is insufficient evidence under the law to support a verdict.

When the trial court is considering a motion for judgment on the evidence subsequent to the jury's verdict, it must view only the evidence favorable to the non-moving party and the reasonable inferences to be drawn from that evidence. The trial court may enter judgment only if there is no substantial evidence or reasonable inference to be adduced therefrom to support an essential element of the claim, i.e., the evidence must point unerringly to a conclusion not reached by the jury. McCague v. New York, Chicago & St. Louis R.R. (1946), 225 Ind. 83, 71 N.E.2d 569, 73 N.E.2d 48. This is the same standard which applies to a motion for judgment made at the conclusion of the evidence, i.e., there must be a complete failure of proof.

'It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant . . ..'

Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315; accord, Vernon Fire & Cas. Ins. Co. v. Sharp (1976), Ind., 349 N.E.2d 173; Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701.

If there is relevant evidence which supports the verdict, then the motion may not properly be granted because evidence which supports the verdict is sufficient evidence, and the final determination is left to the fact finder. This is not the scintilla rule. A scintilla is by definition barely perceptible and would not support a reasonable inference. Judicial economy is served by this view in that the trial court withdraws the case from the jury or enters a judgment notwithstanding the verdict whenever an appellate court would be compelled to find the evidence does not support a judgment. McCague, supra; Culp v. Burkle (1946), 224 Ind. 552, 69 N.E.2d 169; Beaman v. Hedrick (1970), 146 Ind.App. 404, 255 N.E.2d 828. The trial court may not weigh the evidence when considering whether to enter judgment contrary to the verdict. If the trial court is convinced that the weight of the conflicting evidence preponderates against the jury's...