Ayr-Way Stores, Inc. v. Chitwood, AYR-WAY

• Citation: 292 N.E.2d 298
• Decision Date: 15 February 1973
• Docket Number: No. 1271A265,AYR-WAY,1271A265
• Parties: STORES, INC., The E. T. Rugg Company, Appellants (Defendants Below), v. Randall Scott CHITWOOD, a minor, by Michael T. Chitwood, his next friend, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 298

292 N.E.2d 298

AYR-WAY STORES, INC., The E. T. Rugg Company, Appellants (Defendants Below), v. Randall Scott CHITWOOD, a minor, by Michael T. Chitwood, his next friend, Appellee (Plaintiff Below).

No. 1271A265.

Court of Appeals of Indiana, First District.

Feb. 15, 1973.

Rehearing Denied March 12, 1973. Opinion Superseded, 300 N.E.2d 335.

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

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

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

LYBROOK, Judge.

This appeal arises from a damage action wherein the jury returned a verdict for $80,000 in favor of Plaintiff-Appellee, Randall Scott Chitwood (Chitwood) and against Defendants-Appellants, Ayr-Way Stores, Inc and The E. T. Rugg Company (Ayr-Way and Rugg). The judgment was for personal injuries caused by an allegedly defective lawn mower, manufactured by Rugg and sold to Chitwood's father by Ayr-Way.

Appellants' primary contention is that the trial court erred in granting, over appellants' objections, Chitwood's Motion to Amend the Complaint during the trial at the close of plaintiff's case. In the alternative, appellants maintain that their request for a continuance should have been granted. Before discussing these issues, a brief recitation of certain facts is necessary.

On May 30, 1966, Michael Chitwood, father of Randall Scott Chitwood, age four, purchased a riding lawn mower at an Ayr-Way store, after looking at mowers displayed in the window. The mower purchased was in a sealed cardboard carton which was placed in Chitwood's car by Ayr-Way employees. When he got home Chitwood removed the mower from the carton and prepared it for use by installing the steering wheel, putting in oil and gas and adjusting the cutting height. Instructions were included in the carton.

This particular model had a single operating pedal on the right hand side. Depressing the pedal started the mower in motion and releasing the pedal was supposed to cause the mower to stop.

Chitwood's brother, Wayne, assisted him in removing the mower from the carton. Michael Chitwood operated it for about five or ten minutes in mowing the lawn and then Wayne Chitwood tried the mower out. When Wayne first tried to stop it, it stopped satisfactorily. Wayne Chitwood was mowing in the back yard when he came to a junction of two sidewalks. After stoping the mower, he put it in reverse and started to back up. When he looked over his shoulder he saw Randall Chitwood, the plaintiff, stading behind him. Randall fell down and Chitwood stated that he released the pedal but the mower continued on, running over the plaintiff. This resulted in severe and permanent injuries, including the amputation of the great toe and distal head of the metatarsal bone on his left foot and severe lacerations to this lower lumbar region and buttocks.

Chitwood's complaint, filed January 8, 1968, was in two paragraphs, alleging a breach of express warranty and negligence by both defendants.

After a pre-trial conference was held, a trial date was set and trial commenced on June 2, 1971. One June 7, 1971, three and one-half years after the filing of the original complaint, and at the close of plaintiff's evidence, Chitwood moved to amend his complaint 'to conform to the evidence', pursuant to TR 15(B), IC 1971, 34-5-1-1. The amendment consisted of two additional paragraphs, one alleging strict liability and the other implied warranty.

Ayr-Way and Rugg objected long and strenuously to the amendment, and in the alternative, requested a continuance.

Appellants contend that the granting of the motion to amend and the failure to grant a continuance, both surprised and prejudiced them by forcing them to defend two entirely new issues, without sufficient time to prepare therefor.

Before these questions can be properly considered, it is necessary that we closely examine the provisions of TR 15(B), which reads:

'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 evidence is objected to at the trial on the ground that it is not within the issues made by the 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.'

Chitwood argues that since TR 15(B) provides for an automatic amendment to the pleadings to make them conform to the evidence, his motion to amend can in no way prejudice appellants. He further contends that the matter of a continuance is not relevant because TR 15(B) provides for a continuance only where there were objections to evidence.

Our search has yielded but two Indiana cases dealing with his problem, since the advent of the new rules. The first is Indianapolis Transit System, Inc. v. Williams (1971), Ind.App., 269 N.E.2d 543, where the court held:

'Whether the 'issues' to be tried in any law suit are formed by the pleadings or in a pre-trial order, their function is merely to provide the parties and the court with an itinerary for the journey through the trial. Either party may timely demand strict adherence to the predetermined route or, if deviation is permitted, the time necessary to prepare to meet the new issue. But when the trial has ended without objection as to the course it took, the evidence then controls. Neither pleadings, pre-trial orders, or 'theories' postulated by either party should then operate to frustrate the trier of fact in finding the facts which that evidence (including all reasonable inferences the trier may draw therefrom) convinces him (whether he be a judge or juror), by a preponderance thereof, is true or block him from awarding the relief, if any, which the rules of substantive law say those facts merit.'

The second, Aldon Builders, Inc. v. Kurland (1972), Ind.App., 284 N.E.2d 826, comes nearer to the problem at hand. There, the court said:

'Our examination of the entire record fails to disclose that the...