General Outdoor Advertising Co. v. La Salle Realty Corp.

• Decision Date: 30 June 1966
• Docket Number: No. 20402,No. 2,20402,2
• Parties: GENGERAL OUTDOOR ADVERTISING CO., Inc., Appellant, v. LA SALLE REALTY CORP., Appellee
• Court: Indiana Appellate Court

Page 141

218 N.E.2d 141

141 Ind.App. 247

GENGERAL OUTDOOR ADVERTISING CO., Inc., Appellant, v. LA SALLE REALTY CORP., Appellee.

No. 20402.

Appellate Court of Indiana, Division No. 2.

June 30, 1966.

[141 INDAPP 250]

Norman R. Newman, Indianapolis, for appellant, Dann, Backer & Pecar, Indianapolis, Edward B. Smith, South Bend, of counsel

Isadore D. Rosenfeld, Voor, Jackson, McMichael & Rodibaugh, William E. Voor, Jr., South Bend, for appellee.

HUNTER, Judge.

The appellee brought this action in the lower court to recover damages for injuries to its building alleged to have been caused by the appellant's sign. The appellant had leased the roof of said building on which it erected a large advertising sign. The court tried the case without the

intervention of a jury, awarding the appellee an Eight Thousand Five Hundred ($8,500) Dollar judgement. The appellant assigns as error the lower court's overruling its motion for new trial. Two errors were specifically argued in the briefs

[141 INDAPP 251] The appellant first contends that the decision of the lower court is contrary to law and not supported by sufficient evidence. To support these conclusions, the appellant contends that the theory of the complaint was in contract, that the contract was never introduced into evidence, and that the only evidence was in negligence. Consequently, there was not merely a variation between the allegata et probata but a total failure of proof, i.e., one cannot plead a contract and prove tort.

However, the appellee contends that its complaint stated an action ex delicto not ex contractu. There can be no doubt that all the evidence was in negligence which demonstrated that the appellants were negligent in the construction and maintenance of the sign. The contract (lease) with the hold harmless clause was never introduced into evidence. The appellant made a motion for a judgment at the close of the appellee's evidence stating that all the evidence was in negligence and that the complaint (contract action) was totally unsupported by evidence. The court overruled the motion. In reviewing the record, we found no pertinent objections to the introduction of any of the appellee's evidence. In addition, all the evidence submitted by the appellant, after the denial of its motion, can only be construed as bearing on the issue of negligence. Also, the appellant does not contend that there is insufficient evidence to sustain the court's decision in negligence.

In reading the complaint, we find that in order to construe the complaint as stating an action ex delicto we would have to interpret the complaint with extreme liberality, so much so that we would probably end with a result which was obviously at variance with that intended by the pleader. We have the authority to do so, especially in the absence of a demurrer and a motion to make more specific. However, to entertain such reasoning is to ignore the real issue. We choose to attack the issue directly: that is, can a party plead an action ex contractu but succeed in proving an action ex delicto? In so doing, we do not find it necessary to decide whether the [141 INDAPP 252] complaint was in contract or tort, for any difference will have no bearing in view of the decision we are reaching.

The issue present requires that we review the case law and our civil code in the area of pleadings. In attempting to discern some meaning from these areas, we have found much confusion. Inherent within our decision is the question of the purpose of pleadings. However, for the sake of brevity, we shall attempt to confine our discussion to that issue directly before us.

As authority for its contentions, the appellant cites § 2--1065, Burns' 1946 Replacement and Heck et al. v. Selig (1963), 134 Ind.App. 336, 188 N.E.2d 118 which the appellant contends support the 'well established principle' that a plaintiff's proof must sustain the theory of his complaint. After further development, we shall distinguish this principle from that inherent in this opinion.

It is the opinion of this court that § 2--3231, Burns' 1946 Replacement provides the answer to this issue. The statute provides:

'No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance or imperfection contained in the record, pleadings, process, entries, returns, or other proceedings therein, which, by law, might be amended by the court below, but such defects shall be deemed to be amended in the Supreme

Court;' (Acts 1881 (Spec.Sess.), ch. 38, § 659, p. 240.) (our emphasis)

Consequently, this court on appeal cannot reverse for any 'defect' in 'form' or 'variance' that could have been amended by the lower court. Therefore, the issue becomes whether or not the lower court might have amended the complaint to conform to the evidence.

It is firmly established that a lower court can amend the pleadings before or during the trial regardless of the factor [141 INDAPP 253] that a change in the cause of action might result. In Burr v. Mendenhall (1875), 49 Ind. 496, 498--499, our Supreme Court spoke of the 'irreconcilable' conflict in the decisions at that time as to whether a party could change his cause of action by an amendment of the pleadings after the issues were closed and during the trial. The court finally concluded:

'It will be observed, that the earlier and later decisions of this court, computing time with reference to the adoption of the code, accord with what was the manifest intention of the framers of the code, and that was to secure a speedy trial of causes upon their merits, disregarding all mere formal and technical objections. This intention is manifested in sections 97, 98, and 99 of the code, which prescribe what amendments may be made, and how a party may be relieved against a judgment taken against him by his mistake, inadvertence, or excusable neglect.

The granting of leave to amend the pleadings after the issues are closed, and before the commencement of the trial, and on the trial, is very much within the sound legal discretion of the lower courts, and should only be granted in a proper case and upon good cause shown by affidavit, where the amendment makes a new issue or adds a new cause of action or ground of defense.' (our emphasis)

See also Levy et al. v. Chittenden et al. (1889), 120 Ind. 37, 22 N.E. 92. From these cases, it 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 [141 INDAPP 254] 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, 3 L.R.A. 440.

In addition, it is clear that the civil code did not then, nor does it now, provide that a party during the trial should not be allowed to amend merely because there resulted a change in the cause of action. § 2--1063, Burns' 1946 Replacement provides:

'No variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must be shown in what respect he has been misled; and, thereupon, the court may order the pleading to be amended on such terms as may be just.' (Acts 1881 (Spec.Sess.) ch. 38, § 130, p. 240.)

§ 2--1064, Burns' 1946 Replacement provides:

'Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.' (Acts 1881 (Spec.Sess.), ch. 38, § 131, p. 240.)

§ 2--1066, Burns' 1946 Replacement provides:

'Any pleading may be amended by either party, of course, at any time before the pleading is answered. All other amendments shall be by leave of the court. The party amending shall pay the costs of the leave to amend * * * No cause shall be delayed by reason of an amendment, excepting only the time to make up issue, but upon good cause shown by affidavit of the party or his agent asking such delay.' (Acts 1881 (Spec.Sess.), ch. 38, § 133, p. 240.)

These statutes are substantially the same as when adopted in the revision of the civil code in 1852 and re-enacted in 1881. There can be found no mention of 'cause of action' or 'theory [141 INDAPP 255] of the complaint' in any of such statutes. The only limitation is that found in § 2--1063, supra, applicable to where such an amendment is prejudicial to another party. These statutes are contrary to the tenets of 'theory pleading' as adhered to in the 'common law'. Levy, supra; Burr, supra.

However, much of the confusion that exists is due to $2--1065, supra, which provides:

'When, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.' (Acts 1881 (Spec.Sess.), ch. 38, § 132, p. 240.)

This provision is the same as when adopted in 1852 and...