Goldblatt Bros., Inc. v. Parish, 16464.

• Decision Date: 23 December 1941
• Docket Number: No. 16464.,16464.
• Citation: 33 N.E.2d 835,110 Ind.App. 368
• Parties: GOLDBLATT BROS., Inc., v. PARISH et al.
• Court: Indiana Appellate Court

110 Ind.App. 368

33 N.E.2d 835

GOLDBLATT BROS., Inc.,

v.PARISH et al.

No. 16464.

Appellate Court of Indiana, in Banc.

May 6, 1941.

Rehearing Denied December 23, 1941. See 38 N.E.2d 255.

Appeal from Superior Court, Porter County; Mark B. Rockwell, Judge.

Action by Russell Parish, by his next friend, Waverly Parish, against Goldblatt Brothers, Incorporated, an Indiana corporation, for injuries from use of fireworks. The complaint was amended by interlineation, substituting Goldblatt Brothers, Incorporated, an Illinois corporation, for the Indiana corporation. Judgment for plaintiff, and the Illinois corporation appeals.

Affirmed.Call & Call, of Gary, and Pritzker & Pritzker and William A. Goldman, all of Chicago, Ill., for appellant.

Galvin, Galvin & Leeney and Floyd R. Murray, all of Hammond, for appellee.

DE VOSS, Judge.

Appellee herein, Russell Parish, by his next friend, Waverly Parish, filed his complaint on July 25, 1938, in two paragraphs against Goldblatt Brothers Corporation, an Indiana corporation, in the Lake Superior Court.

It is alleged in the first paragraph of the complaint that appellee was an infant under the age of twenty-one years and that the defendant named therein, Goldblatt Brothers Corporation, an Indiana corporation, was on the second day of July, 1938, engaged in the sale of fireworks and other merchandise in the city of Hammond, Indiana, and that the appellee at that time was of the age of seven years. That on the second day of July, said appellee went to the store of appellant together with his sister and mother to purchase fireworks.

It is further alleged that the appellee informed an employe of said above named defendant that he wished to purchase an article of fireworks known as a flower pot, that such flower pot so requested was equipped with a wooden handle and intended and designed to be held in the hands of the person discharging same, while it was being discharged. That said employe informed him that she could not find the article requested, but that she could and did sell him another article of fireworks that was the same thing as a flower pot. That said article of fireworks, so sold and delivered to the appellee by the employee of said defendant, was charged with a highly explosive substance or compound which was unknown to appellee, and that in handling and discharging the same his right hand was dismembered thereby. That the defendant carelessly and negligently sold said article to appellee, knowing said appellee to be young and unfit to be trusted with such a dangerous article. The second paragraph of complaint contains allegations similar to the first paragraph and also charges a violation of the law in sale of such fireworks.

On September 26, 1938, Goldblatt Brothers Corporation, defendant named in said complaint, filed an answer in general denial. Thereafter a change of venue was taken from Lake County to the Superior Court of Porter County. On February 21, 1939, a trial was had on the issues joined. At the close of the evidence of appellee, the said defendant filed its written motion requesting the court to instruct the jury to render verdict for the defendant on the first and second paragraphs of said complaint, which motions were overruled. The defendant thereupon introduced its evidence and the appellee herein introduced rebuttal evidence thereto.

After the evidence had all been submitted by appellee and Goldblatt Brothers Corporation, an Indiana corporation, appellee filed with the court his written motion to amend the complaint by interlineation so that the complaint and the caption thereof would read, “Goldblatt Bros., Inc., an Illinois Corporation,” instead of “Goldblatt Brothers Corporation, an Indiana Corporation.”

To this motion Goldblatt Brothers Corporation, an Indiana corporation, objected.

On March 2, 1939, the court granted leave to appellee to amend the complaint by interlineation so as to take out Goldblatt Brothers Corporation, an Indiana corporation, and put in Goldblatt Bros., Inc., an Illinois corporation and such amendments were so made, as requested.

Goldblatt Bros., Inc., an Illinois corporation, by and through its attorneys, Pritzker & Pritzker, asked leave to enter a special appearance for the sole purpose of presenting a motion for removal of said cause to the United States District Court for the Northern District of Indiana, and tendered a verified petition for the removal together with bond for filing.

Appellee objected thereto and the court sustained said objection and refused to permit appellant herein to appear specially and refused to permit it to file said verified petition and bond.

Appellant thereupon offered to enter its special appearance for the sole purpose of contesting the jurisdiction of the court and presented for filing its motion in abatement. Appellee objected thereto which objection was sustained and the court refused to permit the special appearance and denied to appellant the tender of said motion and affidavit in support thereof.

Appellant thereafter appeared specially and tendered its verified motion to quash the summons together with the sheriff's return thereon, to which appellee objected, which objection was by the court sustained. Appellant then entered its general appearanceand filed a verified motion to withdraw the submission of the cause, to which appellee objected and which objection was sustained and motion was denied.

Upon motion of appellant, submission of the cause was reopened and further evidence was heard. At the close of the evidence appellee dismissed his second paragraph of complaint. The jury returned a verdict in favor of appellee upon which judgment was rendered for $11,000.

A motion for a new trial was filed and overruled and thereafter this appeal was perfected by Goldblatt Bros., Inc., an Illinois corporation.

[1] Appellant assigns eleven independent errors together with the assigned error in the overruling of appellant's motion for a new trial. The motion for a new trial contains 92 specific reasons, a number of which are waived by a failure to discuss in appellant's brief.

[2] The first assigned error is that: “The trial court erred in sustaining the motion of plaintiff filed on February 27, 1937, to amend the complaint by interlineation.” By the motion appellee sought to insert in the caption of the complaint, “Goldblatt Bros., Inc., an Illinois Corporation,” instead of, “Goldblatt Brothers Corporation, an Indiana Corporation,” and by inserting the word, “Illinois,” in place of the word, “Indiana,” in the body of the complaint.

It is contended by appellant that such amendment changed the sole party defendant and that the defendant named in the original complaint, “Goldblatt Brothers Corporation, an Indiana Corporation,” is an entirely distinct and separate corporation and entity from “Goldblatt Bros., Inc., an Illinois Corporation,” named in the amended complaint, and that to permit an amendment during the trial of the cause which takes out the sole party defendant and substitutes an entirely different one, is error.

Appellee contends that “Goldblatt Bros., Inc., an Illionis Corporation,” was in fact the defendant sued in the original complaint, upon whom service was had, and who appeared therein, and that the amendment merely corrected the name of the party originally sued, and that such amendment made the complaint conform to the facts.

In the case of Boland v. Claudel, 181 Ind. 295, 104 N.E. 577, 578, our Supreme Court said: “If appellant was sued by the wrong name, it could, on motion made, at any time during the progress of the trial, have the proper name inserted in the pleadings, but in no event will the cause abate the action if, in fact the proper party in interest has been served with summons and has appeared to the action.”

See also New Albany & Salem Railroad Co. v. Laiman, 8 Ind. 212,Wiggam Milk Co. v. Johnson, 213 Ind. 508, 13 N.E.2d 522.

It appears from the record that at the time of the negligence charged in the complaint there was in existence a corporation known as “Goldblatt Brothers Corporation, an Indiana Corporation.” There was also in existence a corporation known as “Goldblatt Bros., Inc., an Illinois Corporation.” In the year 1931, the first above named corporation took over the assets of Kaufman & Wolf in the city of Hammond, Indiana, and thereafter operated its business at the location set out in the complaint. In the year 1936, the appellant herein, Goldblatt Bros., Inc., an Illinois corporation, took over all of the assets of the first above named corporation together with the lease on the store building and that said first above named corporation was in the year 1938 in the course of dissolution. It further appears that at the time said business was operated by Goldblatt Brothers, an Indiana corporation, there were name plates imbedded in the corners of the building which contained the words, “Goldblatt Brothers Corporation,” and that such name plates existed on the date complained of in the complaint. The evidence further shows that said store was operated by appellant and was the only retail store in the city of Hammond that was operated by anyone under a name containing the words, “Goldblatt Bros.,” in any combination.

The evidence further discloses that one Phillip D. Mossler was the manager of said store in 1938, at the time set out in the complaint and was under the employment of appellant and that prior to the taking over of said business by Goldblatt Bros., Inc., an Illinois corporation, he had not been employed therein. Said store carried various lines of merchandise during the year 1938 among which was a stock of fireworks. On the 23d day of August, 1938, summons in this case was served upon said Phillip D. Mossler and the said Phillip D. Mossler sent such summons to Goldblatt Bros., Inc., an Illinois corporation, appellant herein, to the city of Chicago.

That the said Mossler learned about two weeks after the service of the...