Grider v. Scharf

• Decision Date: 26 May 1947
• Docket Number: 28285.
• Parties: GRIDER et al. v. SCHARF.
• Court: Indiana Supreme Court

73 N.E.2d 75

225 Ind. 251

GRIDER et al. v. SCHARF.

No. 28285.

Supreme Court of Indiana

May 26, 1947

Appeal from Newton Circuit Court; Newell A. Lamb, Judge.

Albert H. Gavit and Richard S. Kaplan, both of Gary, and George F. Sammons, of Kentland, for appellant.

Jay E. Darlington, of Hammond, for appellee.

YOUNG Judge.

It appears, without contradiction from the record in this case that prior to the infliction of the injuries complained of Local Union 1066 of United Steel Workers of America had ordered a 'dues inspection' of its members employed in the Carnegie Illinois Steel Mill at Gary. A dues inspection, as it was conducted in this case, involves the stopping of employes on their way to work for the purpose of determining whether they are members of the union, and, if so, whether their dues have been paid. Upon the morning appellee was injured, there was evidence that four or five hundred union members congregated on a public highway near the entrance of the steel mill and stopped public buses and private autos containing employes going to work, and those who did not have cards showing union dues paid were turned back. The precedure adopted was for union representatives to require buses carrying employes to the steel mill entrance to stop and to require all passengers to disembark and then permit those thought to be qualified to go ahead and turn back those not thought to be qualified.

Appellee an employee, was not a union member. Her testimony and that of her witnesses was to the effect that she went to work on the morning in question in a public conveyance operated by the Gary street railway system and when the bus, in which she was riding, approached the entrance to the steel mill it was stopped. All passengers were ordered to get out by union representatives directing the 'dues inspection.' Mrs. Scharf refused to obey, whereupon the appellant, Grider, instructed two co-appellants, who were his assistants, to 'get that old sow out of there.' They grabbed her and by violence moved her to the exit. At the steps appellant Grider grabbed her by the leg, about eight inches above the knee, and pulled her off the bus. She filed suit against the Local Union and the National Union and a number of others, including Grider, and those who had actually evicted her from the bus, for compensatory damages and also punitive damages. It was stipulated that appellant, Frank Grider, was in charge of the picketing and pickets at the time and place described in plaintiff's complaint, and, in directing such picketing and pickets, was acting as the duly authorized agent and representative of Local Union No. 1066 of United Steel Workers of America and United Steel Workers of America, and was acting within the scope of his authority and in the regular course of his employment as such agent and representative.

There was trial and verdict for the plaintiff, for both compensatory and punitive damages, and immediately upon return of such verdict counsel for appellants made an oral motion in arrest of judgment, which motion was overruled. Later a motion to withdraw the motion in arrest of judgment and a motion for a new trial were filed and each was overruled. Appeal was taken to the Indiana Appellate Court. The Appellate Court wrote an opinion in which it stated that the substantial questions in the case arise under appellants' motion for a new trial, but that under ruling precedents in this state questions raised by the motion for a new trial could not be considered because a motion in arrest of judgment forecloses the right to file a motion for a new trial. The Appellate Court expressed the opinion that the cases establishing the rule that a motion in arrest of judgment precludes the later filing of a motion for a new trial, except for causes discovered afterward, should be overruled, and they certified the case to us pursuant to § 4-215, First, Burns' 1946 Replacement.

We are, therefore, confronted with the propriety of overruling a long line of cases which prevailed when the case before us was tried, thereby retroactively changing a well established rule of practice and procedure, in order that appellees may present alleged error, which will not be available to them unless such cases are overruled and such rule is changed.

Continuously, and without exception, in a long line of cases this court since 1850, and the Appellate Court since its establishment, have recognized motions in arrest of judgment as a part of our practice and have held that the filing of a motion in arrest cuts off the right to file a motion for a new trial and that a motion for a new trial filed after a motion in arrest presents nothing for consideration. Mason v. Palmerton, 1850, 2 Ind. 117, 120; Rogers v. Maxwell, 1853, 4 Ind. 243, 245; Bepley v. State, 1853, 4 Ind. 264, 265, 58 Am.Dec. 628; Sherry v. Ewell, 1853, 4 Ind. 652; Smith v. Porter, 1854, 5 Ind. 429; Hord v. Noblesville, 1854, 6 Ind. 55; Van Pelt v. Corwine, 1855, 6 Ind. 363, 364; McKinney v. Springer, 1855, 6 Ind. 453, 454; Doe v. Clark, 1855, 6 Ind. 466, 467; Marion, etc., R. Co. v. Lomax, 1856, 7 Ind. 406; Weathered v. Bray, 1856, 7 Ind. 706; Anthony v. Lewis, 1856, 8 Ind. 339; Bates v. Reiskenhianzer, 1857, 9 Ind. 178; Shrewsbury v. Smith, 1859, 12 Ind. 317; Daily v. Nuttman, 1860, 14 Ind. 339, 340; Cincinnati, etc., R. Co. v. Case, 1889, 122 Ind. 310, 316, 23 N.E. 797; Eckert v. Binkley, 1893, 134 Ind. 614, 616, 33 N.E. 619, 34 N.E. 441; Yazel v. State, 1908, 170 Ind. 535, 539, 84 N.E. 972; Kelley v. Bell, 1909, 172 Ind. 590, 595, 88 N.E. 58; Turner v. State, 1910, 175 Ind. 1, 3, 93 N.E. 225; Conant v. First National Bank, 1917, 186 Ind. 569, 572, 117 N.E. 607; Phillips v. Gammon, 1919, 188 Ind. 497, 499, 124 N.E. 699; Anderson v. State, 1924, 195 Ind. 329, 333, 145 N.E. 311; Kirschbaum v. State, 1925, 196 Ind. 512, 519, 149 N.E. 77; School City of Noblesville v. Heinzman, 1895, 13 Ind.App. 195, 197, 41 N.E. 464; Wheeler v. Rohrer, 1899, 21 Ind.App. 477, 483, 52 N.E. 780; Willard v. Albertson, 1899, 23 Ind.App. 166, 167, 53 N.E. 1078, 54 N.E. 446; New Hampshire Fire Ins. Co. v. Wall, 1905, 36 Ind.App. 238, 243, 75 N.E. 668; New Albany etc., Mills Co. v. Senior, 1913, 53 Ind.App. 453, 456, 101 N.E. 1025; Treloar v. Harris, 1917, 65 Ind.App. 22, 116 N.E. 590; Strecker v. Strecker, 1926, 86 Ind.App. 16, 19, 154 N.E. 503; Wright v. J. R. Watkins Co., 1928, 86 Ind.App. 695, 699, 159 N.E. 761; Cassell v. Cochran, 1943, 114 Ind.App. 115, 50 N.E.2d 668, 51 N.E.2d 21. Typical of these cases is the language used by Judge Lairy in Conant v. First Nat. Bank, supra [186 Ind. 569, 117 N.E. 608]:

'The assignment that the court erred in overruling appellants' motion for a new trial presents no question for the reason that the right to file such a motion was waived by previously filing a motion in arrest of judgment. It has been uniformly held by this court that a motion in arrest of judgment cuts off the right to subsequently file a motion for new trial, except only where the grounds of the motion for a new trial were unknown at the time the motion in arrest was made.'

Appellants contend (1) that no good reason sustains this rule, and (2) that since passage of Ch. 157 of the Acts of 1911, § 2-1007, Burns' 1946 Replacement, all grounds for arrest of judgment, not raised by demurrer, are waived.

As disclosed by the opinions in the early cases establishing the rule complained of, the reason for it was that by filing a motion in arrest of judgment on a verdict or finding, the party in effect affirmed the verdict or finding and was not thereafter in position to attack them by a motion for a new trial. McKinney v. Springer, supra; Shrewsbury v. Smith, supra. In Van Pelt v. Corwine, supra, the reason for the rule is stated in the following language: 'The motion in arrest of judgment was an affirmance of the verdict upon the evidence and we shall not, therefore, look into that. The motion for a new trial was too late to be noticed.' This reason for the rule is as sound today as it was when first put in words by this court, and the act of 1911, providing waiver of all insufficiencies in the complaint not pointed out on demurrer, is without meaning so far as the rule cutting off motions for a new trial by motions in arrest is concerned. At most the waiver rule, prescribed by the act, could do no more than afford grounds for overruling the motion in arrest if the ground for such motion in arrest was the insufficiency of the complaint.

This is not the first time that either of appellants' contentions has been urged upon this and the Appellate Court. In Cincinnati, Indianapolis, St.Louis & Chicago Railway Co. v. Case, supra [122 Ind. 310, 23 N.E. 799] a motion in arrest of judgment preceded a motion for a new trial and it was held that the motion for a new trial could not, for that reason, be considered, and in this connection the following language appeared:

'It is claimed by the appellant that no good reason can be given for the rule established by these numerous cases, and that, therefore, they should be overruled. But it must not be forgotten that they establish a rule of practice which has prevailed in this state for many years, well understood by the profession. A rule so established and so well understood as this should not be disturbed, except for some strong reason. The rule can work no hardship, as a party may, after a motion for a new trial, move in arrest of judgment, and thus secure the benefit of both motions. We know of no good reason why this long list of cases should be overruled. * * *'

It so happens that the identical question primarily involved in the case before us was involved in the case of Cassell v Cochran, supra, decided by the Appellate Court late in 1943. In that case a motion in...