Grand Rapids Motor Exp. v. Crosbie

• Decision Date: 10 January 1947
• Docket Number: 17477.
• Citation: 69 N.E.2d 247,117 Ind.App. 360
• Parties: GRAND RAPIDS MOTOR EXPRESS, Inc., v. CROSBIE.
• Court: Indiana Appellate Court

69 N.E.2d 247

117 Ind.App. 360

GRAND RAPIDS MOTOR EXPRESS, Inc., v. CROSBIE.

No. 17477.

Appellate Court of Indiana, in Banc.

January 10, 1947

Appeal from Lake Superior Court; Harold L. Strickland, Judge.

Action by George Crosbie against Grand Rapids Motor Express, Inc. to recover for damages to plaintiff's motor truck-trailer unit, and loss of use thereof, allegedly caused by negligent operation of defendant's motor truck-trailer unit wherein the defendant filed a cross-complaint. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Oscar C. Strom, of Gary, for appellant.

Peters & Highland and P. L. O'Brien, all of Hammond, for appellee.

HAMILTON Presiding Judge.

This opinion supersedes written opinion dated November 7, 1946 which is hereby withdrawn. We have considered not only the questions raised by the original briefs but also those urged in the brief on petition for rehearing.

This was an action by appellee against appellant to recover for damages to appellee's motor truck-trailer unit, and loss of the use thereof, allegedly caused by the negligent operation of a motor truck-trailer unit owned and operated by appellant. Appellant filed a cross-complaint. Issues were joined upon the complaint and cross-complaint and the cause was tried to a jury, which returned its general verdict in favor of appellee and assessed damages in the sum of $2600. No verdict was returned upon the cross-complaint. Appellant filed its motion for judgment on the answer to interrogatories notwithstanding the general verdict, which motion was overruled by the court.

Errors assigned were as follows:

'1. The Court erred in rendering a judgment against the appellant (defendant) on his Cross Complaint.

'2. The Court erred in refusing the application of the appellant (defendant) to file said appellant's (defendant's) Third and Supplemental Paragraph of Answer.

'3. The Court erred in denying the appellant's (defendant's) application for a continuance because of absence of Wayne DeWendt, a material witness in the military service in the Pacific Islands.

'4. The Court erred in refusing the appellant's (defendant's) Petition for leave to take the deposition of witness Wayne DeWendt, in Tokyo, Japan.

'5. The Court erred in refusing application of the appellant (defendant) for time to take the deposition of witness, Wayne DeWendt, in Tokyo, Japan.

'6. The Court erred in refusing to give to the July each of the Interrogatories numbered 1 to 27, tendered by the appellant (defendant) with a request that the Court require the Jury to answer the same.

'7. The Court erred in over-ruling the appellant's (defendant's) Motion for Judgment in its favor on the Interrogatories submitted to the Jury, and the answers of the Jury to such Interrogatories.

'8. The Court erred in over-ruling the appellant's (defendant's) Motion for Judgment Notwithstanding the Verdict.'

Nine interrogatories were submitted to the jury and answers thereto were returned by the jury in which the following facts were found as established by the evidence: That George Sutherland was the agent of George Crosbie, the plaintiff, at the time of the accident; that James Pierce was the agent of appellant at the time of the accident; that there was other motor vehicle traffic traveling east from the west at the time of the accident; that there was a berm, or shoulder, about 12 feet wide on the south side of the pavement at the place of the accident upon which plaintiff's truck could have been safely driven before the accident; that said berm, or shoulder, was frozen and in hard condition; that plaintiff had lights lighted on his truck at the time of the accident; that plaintiff's truck was in motion at the time of the accident; that plaintiff's driver did not put out any flares before the accident.

Appellant's first assignment of error calls in question the ruling of the court in rendering judgment against him on his cross-complaint when the jury had failed to make any express finding under the issues joined upon the cross-complaint. This assignment of error is not well taken for the reason the general verdict was: 'We, the jury, find the issues for the plaintiff * * *.' Under this verdict the jury necessarily found that the defendant was guilty of the negligence alleged in appellee's complaint and such verdict further found that the plaintiff was not guilty of the negligence charged in the cross-complaint, or otherwise the jury could not have found the issues for the plaintiff. The issues included those joined on the complaint and the cross-complaint. In such a case the court was justified in rendering judgment against the appellant on his cross-complaint. Chambers et al. v. Butcher et al., 1882, 82 Ind. 508, 516; Beers v. Flock, 1891, 2 Ind.App. 567, 568, 28 N.E. 1011.

The second assignment of error attempts to present the ruling of the court in refusing appellant's application to file a third and supplemental paragraph of answer. The record discloses that issues were closed and the cause submitted for trial on November 15, 1945, and during the trial of said cause, viz.: November 20, 1945, appellant tendered for filing its third paragraph of answer which was refused by the court.

It is well settled by the Indiana authorities that the filing of additional pleadings after the issues are closed and the trial of the cause has been commenced is wholly within the discretion of the trial court. Sayers et al. v. First National Bank of Crawfordsville, 1883, 89 Ind. 230, 231; Havens et al. v. Gard et al., 1891, 131 Ind. 522, 523, 31 N.E. 354. Appellant failed to make any showing of diligence in offering to file a third paragraph of answer and for this reason alone the court did not err in refusing to permit the pleading to be filed. State v. Snyder, 1932, 95 Ind.App. 390, 394, 183 N.E. 680; Myers v. Moore, 1891, 3 Ind.App. 226, 228, 28 N.E. 724.

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