Holt v. Basore

• Citation: 77 N.E.2d 903,118 Ind.App. 146
• Decision Date: 17 March 1948
• Docket Number: 17590.
• Parties: HOLT v. BASORE.
• Court: Indiana Appellate Court

77 N.E.2d 903

118 Ind.App. 146

HOLT v. BASORE.

No. 17590.

Appellate Court of Indiana, in Banc.

March 17, 1948

Clair M. McTurnan, John H. Baldwin and Alembert W. Brayton, III, all of Indianapolis, for appellant.

Louis Rosenberg and James M. Dawson, both of Indianapolis, for appellee.

BOWEN Presiding Judge.

This is an appeal from a judgment in an action for damages for alleged negligence of appellee in driving his automobile into appellant, a pedestrian, who was in the act of crossing a street.

Error is predicated upon the overruling of appellant's motion for a new trial, and alleged error of the court in granting appellee leave to amend his answer by interlineation setting up the defense of contributory negligence, at the conclusion of the evidence, and after the parties had rested and the witnesses had departed. The grounds of the motion for a new trial set forth that there was an abuse of discretion in permitting the above amendment, and that the court erred in refusing to sustain appellant's motion to withdraw the case from the jury and to discharge the jury which motion was made after such amendment of answer.

Additional grounds of the motion for a new trial were that the court erred in refusing to give four separate instructions tendered by appellant, and in giving nineteen separate instructions on its own motion, and that the verdict is not sustained by sufficient evidence and is contrary to law.

Issues were joined on appellant's complaint in one paragraph appellee's answer denying the allegation of each rhetorical paragraph, and the cause was tried to a jury.

The evidence was concluded and the parties rested and after the court had submitted a tentative and partial list of instructions to the parties for suggestions on the following day, the appellee filed his motion for leave to amend his answer by interlineation setting up the defense of contributory negligence which was sustained by the court. The jury returned a verdict for appellee and this appeal is prosecuted from the judgment on such verdict.

One of the questions presented by appellant's assignments of error is whether the trial court abused its discretion in permitting appellee to amend his answer at the conclusion of the evidence by interlineation setting forth the defense of contributory negligence. In presenting this question appellant assumes that contributory negligence must be specially pleaded in a personal injury case. This assumption is erroneous. The rule specifically provides that '* * * All defenses shall be provable under a specific denial or statement of no information, which were heretofore available under an answer or reply in general denial. * * *' Rule 1-3.

Prior to the adoption of this rule contributory negligence in personal injury actions was provable under the general denial. It, therefore, continues to be so provable.

Appellant points, however, to Burns' 2-305, Acts 1943 Chapter 227, Section 1, page 662, and insists that this Act governs. It is suggested on the other hand that this act in the point now under consideration applies only to those cases where actions for personal injuries and property damages are joined. It is not necessary for us to determine whether it so applies. It is sufficient to call attention to the fact that at the time of the enactment of this act the rule of the Supreme Court above referred to was in force. Any legislative enactment in conflict therewith would necessarily be ineffective. Both by virtue of statute (2-4718) and by reason of its inherent powers the superior authority for making rules of court practice lies in the Supreme Court. See Preface to Rules of Supreme Court adopted June 21, 1937.

Appellant...