Grevenstuk v. Hubeny
| Decision Date | 23 January 1940 |
| Docket Number | 27326. |
| Citation | 24 N.E.2d 924,216 Ind. 379 |
| Parties | GREVENSTUK v. HUBENY. |
| Court | Indiana Supreme Court |
Appeal from Benton Circuit Court; Elmore Barce, Judge.
Charles M. Snyder, of Fowler, and Halleck & Halleck, of Rensselaer, for appellant.
Galvin Galvin & Leeney, of Hammond, and Fraser & Isham, of Fowler, for appellee.
On the 25th day of August, 1935, about noon, the appellant was driving his V-8 Ford automobile east on State Highway No. 10. At the same time the appellee accompanied by his family was causing his Chevrolet automobile to be driven by his son south on preferential State Highway No. 55. These highways intersect at right angles in Newton County, at which place the automobiles collided.
Appellant sued appellee by a complaint in two paragraphs--one for damages to his automobile and the other for personal injuries charging negligence of appellee. Thereafter and within two years, appellee filed an answer denominated a cross-complaint, but, in fact, a counterclaim, in which he claimed damages on account of injuries sustained by his wife because of appellant's negligence. Afterwards, in December, 1937, appellant filed an amended complaint, which was answered by appellee by filing a counterclaim and subsequently dismissing the cross-complaint theretofore filed. The appellant filed a motion to strike out the cross-complaint and counterclaim for the reason that the causes of action alleged in the appellant's complaint and in appellee's counterclaim were based upon a tort; that one tort cannot be pleaded against another; that the accident out of which both torts arose is the same but the negligence charged in each pleading is different and independent. It is further charged that the counterclaim was not filed within two years after the accrual of the cause of action. There was a demurrer based upon the same ground. Both the motion and demurrer were overruled. Issues were formed by a general denial to both complaint and counterclaim. The cause was submitted to a jury for trial, which resulted in a verdict for appellee on his counterclaim, assessing his damages in the sum of $750. Motion for a new trial was overruled and judgment was rendered upon the verdict.
Appellant assigns error upon the court's refusal to sustain his motion to strike out the cross-complaint first filed. There was no error on account of this ruling, for the reason that the cross-complaint was dismissed before trial. No summons was issued upon the cross-complaint or the counterclaim, but the appellant appeared thereto and filed his motion and demurrer, and later an answer in general denial. He thereby waived summons. Judd v. Gray, Guardian, 1901, 156 Ind. 278, 59 N.E. 849.
The claim that an action by way of counterclaim is not maintainable against a complaint in tort filed to recover damages sustained by the appellant because of the negligence of the appellee is untenable. The counterclaim arose out of the same accident which was the basis of the cause alleged in appellant's complaint and was properly pleaded as an answer to the complaint. The decision in Opple et al. v. Ray, 1935, 208 Ind. 450, 195 N.E. 81, fully discussed and determined the question against the appellant's contention. Also see Gillespie v. Hunt, 1938, 214 Ind. 229, 14 N.E.2d 1015.
The fact that the pleading first filed was entitled a cross-complaint is of no importance since the allegations therein showed it to be a counterclaim, and it will be so regarded. Reardon v. Higgins, 1906, 39 Ind.App. 363, 79 N.E. 208.
It is true that the appellee's second counterclaim was not filed until December, 1937, more than two years after the collision. This counterclaim was nothing more than an amendment of the original cross-complaint or counterclaim, and since the original counterclaim was filed in time, the statute of limitations did not prevent the filing of a second or amended counterclaim. Humphries v. McAuley, 1933, 205 Ind. 469, 475, 187 N.E. 262; George B. Limbert & Co. v. Waznitsky, 1921, 191 Ind. 419, 423, 133 N.E. 128. The statute of limitations had not run when appellant's action was filed, and, therefore, the appellee could plead by way of counterclaim a cause of action which was not barred at the time the appellee's first counterclaim was filed. Eve v. Louis et al., 1883, 91 Ind. 457, 469; Zink v. Zink, 1914, 56 Ind.App. 677, 106 N.E. 381.
Although the cause of action pleaded in both the complaint and counterclaim grew out of the same collision, the appellant makes the point that his cause of action is based upon the negligence of the appellee; that the appellee's cause of action is not based upon the same negligence, but upon the negligence of the appellant, and, therefore, they are independent actions and the counterclaim cannot be maintained. This matter is discussed and decided contrary to appellant's contention in Opple et al. v. Ray, supra.
The appellant asserts that the verdict of the jury was not sustained by sufficient evidence. The appellee recovered damages for injuries sustained by his wife, a passenger in his car at the time of the collision. To warrant recovery it was necessary that the appellant's negligence be shown. It is established that as appellee drove south on preferential State Highway No. 55 and approached its intersection with road No. 10 he saw the appellant approach the intersection from the west and slow the speed of his automobile as if to stop. Believing that the appellant intended to stop, appellee drove into the intersection, but as he drove into the intersection, the appellant, without any warning, at once accelerated the speed of his automobile and drove in front of appellee's automobile without giving him time...
To continue reading
Request your trial