Hancock v. York, 20510
| Decision Date | 13 June 1967 |
| Docket Number | No. 2,No. 20510,20510,2 |
| Citation | 227 N.E.2d 187,141 Ind.App. 212 |
| Parties | Rosemary HANCOCK, Appellant, v. Marvin YORK and The Kroger Co., a Corporation, Appellees |
| Court | Indiana Appellate Court |
Donald Willsey, William Winingham, Indianapolis, for appellant.
Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.
This action was commenced on October 27, 1960, by appellant-plaintiff, Rosemary Hancock, against appellees Marvin York and The Kroger Co., to recover damages for personal injuries and punitive damages alleged to have been sustained as the result of having been slandered and falsely imprisoned by appellees.
The issues were first closed on December 7, 1961, by appellees' answer in four paragraphs, admitting or denying allegations of appellant's four paragraphs of second amended complaint.
On December 11, 1961, appellant requested, in writing, a trial by jury. Finally, on May 27, 1965, the trial court set this case for trial by jury on September 7, 1965.
On September 1, 1965, appellees petitioned the court for leave to amend their answer to appellant's second amended complaint. The parties appeared by counsel on September 2, 1965, and the court granted appellees leave to file amended answer, which was thereupon filed, containing affirmative allegations negating malice as to alleged slanderous words spoken by appellees and asserting probable cause and reasonableness in respect of appellant's alleged detention. The same day the court entered its order requiring appellant to reply to the amended paragraphs of answer 'by the time of trial, which is set for next Tuesday, September 7, 1965, at 9:00 A.M. before a jury already ordered'. The court permitted appellant to amend her second amended complaint by interlineation increasing the ad damnum.
On September 3, 1965, appellant filed a verified motion for a continuance of the trial date, asserting insufficient time to prepare for and meet the affirmative matters alleged in appellees' amended answer, and the same day the court overruled appellant's request for a continuance. On September 7, 1965, the cause was submitted for trial and a jury was duly empaneled and the trial of the cause was thus commenced. Before the introduction of evidence the following transpired:
Appellant filed a consolidated motion to strike alleged conclusions in defendants' amended answer or require defendants to plead facts to sustain the alleged conclusions. The court sustained the motion to strike in part and overruled the remaining specifications. Appellant filed a demurrer to each paragraph of defendants' answer, which the court overruled. Appellant then filed a reply to appellees' four paragraphs of amended answer. The court then, on its own motion, rescinded its order permitting appellant to increase the ad damnum of her complaint.
The jury was recalled and the trial proceeded to a verdict for appellees and against appellant on her complaint. The jury, by special verdict, returned interrogatories and answers thereto as follows:
Did plaintiff unlawfully take property belonging to The Kroger Co., at the time and place specified in her complaint, without payment therefor and without permission to take such property?
If you find that Marvin York detained the plaintiff at the time and place alleged in her complaint, did he, at that time, have such grounds to believe that plaintiff was unlawfully taking property belonging to The Kroger Co. as would lead a reasonable, prudent man to so believe?
If you find that Marvin York detained the plaintiff at the time and place alleged in her complaint, then, considering all of the circumstances which you may find to have existed at the time, was any such detention by him reasonable as to its duration and its manner?
Did Marvin York at the time and place alleged in plaintiff's complaint say, 'We want what you took out of our store that you did not pay for'?
ANSWER No'
If the answer to interrogatory number 4 is yes, state who, other than Marvin York, Jackie Brown and plaintiff heard said statement or was present at the time it was spoken.
ANSWER_ _
If you find that Marvin York detained the plaintiff at the time and place alleged in plaintiff's complaint, did he do so maliciously, or wantonly in an oppressive manner, or with a reckless disregard for plaintiff's rights?
Judgment was entered for the defendants-appellees on the general verdict. Thereafter appellant filed a timely motion for a new trial, which was overruled. From this ruing, this appeal was taken. The sole error assigned in the assignment of errors is that the trial court erred in overruling appellant's motion for a new trial. The essential specifications in appellant's motion for a new trial are as follows: 1. The trial court erred in overruling plaintiff's motion for continuance after the court had allowed defendants to amend their answer over plaintiff's objection, said amended answer injecting affirmative defenses for the first time four (4) days before trial and put in final form the morning of trial, not allowing plaintiff to prepare for the trial of the new defenses set out in the amended answer; 2. The court erred in giving certain of appellees' tendered instructions 3. The trial court erred in refusing to give, at appellant's request, certain instructions; 4. The trial court erred in overruling plaintiff's demurrer to defendants' amended answer; 5. The trial court erred in refusing to grant appellant reasonable opportunity to examine appellees' tendered instructions and make specific objections to each before argument.
It appears from the evidence submitted in this cause that appellant, on October 28, 1958, went into one of appellee's stores in the city of Indianapolis to shop for groceries. One Jack D. Brown, a grocery clerk employed by appellee, Kroger, testified he saw appellant pick up a pair of boy's corduroy trousers and put them under her coat. Brown informed appellee Marvin York, the store manager, of appellant's actions and both Brown and York watched appellant 'check out', at which time they determined that appellant did not pay for the trousers. Appellee York, and Brown, followed appellant to the parking lot where they stopped her. At this time, appellant testified that York stated in a loud voice, in the presence of other unknown persons 'We want what you took from the store and didn't pay for'. Appellee York then asked appellant to open her coat and she complied. York did not find the trousers, although he did not search appellant's person. Appellant then returned to the store and demanded a refund for the groceries which she had purchased, which York gave to her. Appellant testified York then stated to her 'Get out of the store, we don't want your kind of people here'.
Appellant first asserts that the trial court erred in overruling her verified motion for a continuance. The motion, of necessity, was presented to the trial court pursuant to Burns' Indiana Statutes, §§ 2--1066 and 2--1067, which provide, in part, .
Appellant's motion stated that only one and one-half days remained (excluding Saturday, Sunday and Labor Day) between the time the amended paragraphs of answer were filed and the trial day; that additional time was needed to reply or respond because the amended affirmative answers 'introduced new issues,' and appellant 'would be required to prepare evidence on such issues'. After a lapse of three years and nine months after the issues were first closed, professional courtesy might have induced appellees not to object to a continuance requested...
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