Inter State Motor Freight Sys. v. Henry, No. 16533.

Docket NºNo. 16533.
Citation111 Ind.App. 179, 38 N.E.2d 909
Case DateJanuary 21, 1942
CourtCourt of Appeals of Indiana

111 Ind.App. 179
38 N.E.2d 909

INTER STATE MOTOR FREIGHT SYSTEM
v.
HENRY et al.

No. 16533.

Appellate Court of Indiana, in Banc.

January 21, 1942.


Appeal from Delaware Circuit Court; Leonidas A. Guthrie, Judge.

Action by Alva Henry, administrator of the estate of LeRoy Robbins, against the Inter State Motor Freight System and others for the death of plaintiff's decedent in an automobile accident. From a judgment for plaintiff, named defendant appeals.

Affirmed.

[38 N.E.2d 910]

Myers & Reed, of Muncie, for appellant.

McClellan & McClellan, of Muncie, and Ernest E. Chenoweth, of Portland, for appellees.


BEDWELL, Presiding Judge.

The appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, instituted this action against the appellant, Inter State Motor Freight System, the appellees, Virgil F. Cottongim and Walter R. O'Neal, and one Leon Cottongim, to recover damages resulting to the widow and children of the decedent, LeRoy Robbins, because of his alleged wrongful death. Robbins was killed on October 2, 1936, while riding as a guest in an automobile being operated by one Fred Evans along Indiana State Highway No. 67. Such automobile, at about 11:30 p.m., on such date, ran into the rear of a trailer, which, with its attached motor truck, was parked upon the paved portion of such highway, and the fatal injuries of Robbins were received in such collision.

The complaint alleged, in substance, that on the 2nd day of October, 1936, the defendants, Inter State Motor Freight System, Virgil F. Cottongim, Leon Cottongim and Walter R. O'Neal, controlled and operated a certain motor vehicle and trailer consisting of a truck or tractor to which the trailer was attached, and that said motor vehicle and trailer were being operated and driven upon Indiana State Highway No. 67, in a southwesterly direction, by the defendants between the City of Portland, Jay County, Indiana, and the City of Muncie, Delaware County, Indiana; that said defendants stopped said motor vehicle and trailer on the paved portion of said highway about the hour of 4:30 p. m. until about 7 a. m. of October 3, 1936, and that said defendants carelessly and negligently permitted said motor vehicle and said trailer to be and remain on said paved portion of said highway from sundown until the hour of midnight on said 2nd day of October, 1936, without displaying thereon any lights or danger signals of any kind to warn travelers on said highway of said danger and obstruction, and said defendants carelessly and negligently failed to place any flares of any kind to the rear of said obstruction on said highway as required by the laws of the State of Indiana, and

[38 N.E.2d 911]

said defendants carelessly and negligently failed and neglected to station any person or persons to the rear of said obstruction where travelers on said highway could be warned of the danger of said obstruction in time to prevent accident or injury.

The complaint further alleged, in substance, that on the 2nd day of October, 1936, plaintiff's decedent was riding as a guest in an automobile that was controlled and operated by one Fred Evans, and that said decedent was seated in the rear seat in such automobile and on the left side, and had no management or control of its operation; that the automobile was being driven in a southwesterly direction on Indiana State Highway No. 67 in a careful manner and at a moderate rate of speed of 40 miles per hour, and that the automobile driven by Evans approached the motor vehicle and trailer that were stopped on such highway without any notice or knowledge of Evans and the other occupants of such automobile of said obstruction being so located, and while said automobile was being so operated it ran into and against the rear of such trailer with such force that plaintiff's decedent was fatally injured and almost instantly died.

It is further alleged that the fatal injury and death of plaintiff's decedent was caused solely by reason of the careless and negligent act of the defendants in permitting said motor truck and trailer to be and remain standing on such paved highway without displaying any lights on the rear of such trailer and without placing any flares or signals at the rear of said trailer, and without using ordinary care in placing some person or persons at the rear of said trailer at a distance where travelers on said highway could be warned of said danger and to plaintiff's damage in the sum of $10,000.

After plaintiff's action was instituted it was dismissed as against Leon Cottongim, but issues were completed by the plaintiff and the remaining defendants and the cause was submitted to a jury of the Delaware Circuit Court for trial and a verdict was returned on January 4, 1939. This verdict was in favor of the appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, and against the appellant, Inter State Motor Freight System, in the sum of $5,000. The verdict was silent as to the defendants and appellees, Virgil F. Cottongim and Walter R. O'Neal.

The appellant is relying for reversal upon the following alleged errors which it contends the trial court committed, to-wit:

(1) Error in overruling its motion to make appellee's amended complaint more specific.

(2) Error in overruling its motion to strike out parts of appellee's amended complaint.

(3) Error in overruling its demurrer to appellee's amended complaint.

(4) Error in overruling its motion for judgment in its favor notwithstanding the verdict of the jury.

(5) Error in overruling its motion for a new trial.

(6) Error in overruling its motion for a venire de novo.

The record shows that after the filing of appellant's motion to make the amended complaint of the appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, more specific, such appellee filed a second amended complaint and issues were closed and the cause tried thereon. The motion to make more specific was not refiled thereto. This second amended complaint took the place of the amended complaint to which appellant's motion to make more specific was addressed.

[1] Where an amended complaint, complete in itself, is filed, it supersedes the prior complaint and no rulings made upon motions or demurrers addressed to the prior complaint are available as error on appeal. Kirkpatrick v. Holman, 1865, 25 Ind. 293;Humphrey v. City Nat. Bank of Evansville, 1921, 190 Ind. 293, 130 N.E. 273;Slifer v. Williard, 1921, 78 Ind.App. 88, 131 N.E. 87, 132 N.E. 321;Watson v. Gary Street Railway Co., 1938, 104 Ind.App. 656, 12 N.E.2d 976;Williams v. Williams, Adm'r, 1940, 217 Ind. 581, 588, 29 N.E.2d 557.

[2] Appellant filed a motion to strike out parts of the second amended complaint of appellee. This motion was overruled by the trial court. It is settled law that error on appeal cannot be predicated on the action of the trial court in overruling a motion to strike out a part or all of a pleading. Lindley v. Sink, Adm'r, Ind.Sup., Dec. 16, 1940, 30 N.E.2d 456;Dickerson v. Dickerson, 1937, 104 Ind.App. 686, 689, 10 N.E. 2d 424, 11 N.E.2d 514;

[38 N.E.2d 912]

London & Lancashire Indemnity Co. of America v. Community Savings & Loan Ass'n, 1936, 102 Ind.App. 665, 670, 4 N.E.2d 688;Rooker v. Fidelity Trust Co., 1921, 191 Ind. 141, 159, 131 N.E. 769.

[3] The appellant contends that its demurrer to appellee's second amended complaint should have been sustained and that the complaint was insufficient because it failed to show that the negligent acts of defendants were the proximate cause of the damage complained of, and because it affirmatively showed that the negligence of Fred Evans was the proximate cause of such damage. This contention is wholly without merit. The allegations of the complaint heretofore set forth fully show that appellant's contentions are not justified.

After the return of the verdict, the appellant filed a motion for a judgment in its favor notwithstanding the verdict. Attached to such motion was a memorandum which disclosed that the claimed basis therefor was the fact that the jury returned a verdict against the appellant alone and had made no mention of its co-defendants, Virgil F. Cottongim and Walter R. O'Neal. Such motion further disclosed that appellant claimed that the evidence and pleadings established that the theory of the action was that a relationship of master and servant existed between the defendants, and that a verdict against appellant and exonerating its co-defendants was self-contradictory.

[4] It is well established by a number of decisions in this state that where an action proceeds upon the theory that the relation of master and servant exists between the defendants, and that the master is liable solely because of the negligent acts of the servant, that a verdict in favor of the servant and holding the master guilty of negligence relieves not only the servant but the master from liability. Zainey v. Rieman, 1926, 84 Ind.App. 480, 151 N.E. 625;Holbrook v. Nolan, 1937, 105 Ind.App. 75, 10 N.E.2d 744;United Transportation...

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24 practice notes
  • Strauss v. Stratojac Corp., No. 85-1498
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 26, 1987
    ...or the principal individually should stand, even though the two were sued as joint tortfeasors. Inter State Motor Freight Sys. v. Henry, 111 Ind.App. 179, 189, 38 N.E.2d 909, 912-13 Second, the next two claimed inconsistencies, that the tort of interference with a contract requires the plai......
  • Siebrand v. Gossnell, No. 14468.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 23, 1956
    ...Liability of Master. But in DeGraff v. Smith, supra, the court, after quoting from Inter State Motor Freight System v. Henry, 111 Ind. App. 179, 38 N.E.2d 909, 912, as "`Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself been gui......
  • Kapson v. Kubath, Civ. A. No. 2289.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 27, 1958
    ...v. Cain, 222 Ind. 330, 53 N.E.2d 165, 769; Kizer v. Hazelett, 221 Ind. 575, 49 N.E.2d 543; Inter State Motor Freight System v. Henry, 111 Ind. App. 179, 38 N.E.2d 909; Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897; Kniola v. Kozlowski, 75 Ind.App. 2, 129 N.E. 489; Griffin v. Bozeman, 234 Al......
  • Thanos v. Fox, No. 18965
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1958
    ...to a verdict in his favor; Holbrook v. Nolan, 1938, 105 Ind.App. 75, 10 N.E.2d 744; Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 38 N.E.2d 909; and the verdict, therefore, stands as one in favor of the appellee and against the appellant company 'Assuming, as the appell......
  • Request a trial to view additional results
24 cases
  • Strauss v. Stratojac Corp., No. 85-1498
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 26, 1987
    ...or the principal individually should stand, even though the two were sued as joint tortfeasors. Inter State Motor Freight Sys. v. Henry, 111 Ind.App. 179, 189, 38 N.E.2d 909, 912-13 Second, the next two claimed inconsistencies, that the tort of interference with a contract requires the plai......
  • Siebrand v. Gossnell, No. 14468.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 23, 1956
    ...Liability of Master. But in DeGraff v. Smith, supra, the court, after quoting from Inter State Motor Freight System v. Henry, 111 Ind. App. 179, 38 N.E.2d 909, 912, as "`Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself been gui......
  • Kapson v. Kubath, Civ. A. No. 2289.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 27, 1958
    ...v. Cain, 222 Ind. 330, 53 N.E.2d 165, 769; Kizer v. Hazelett, 221 Ind. 575, 49 N.E.2d 543; Inter State Motor Freight System v. Henry, 111 Ind. App. 179, 38 N.E.2d 909; Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897; Kniola v. Kozlowski, 75 Ind.App. 2, 129 N.E. 489; Griffin v. Bozeman, 234 Al......
  • Thanos v. Fox, No. 18965
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1958
    ...to a verdict in his favor; Holbrook v. Nolan, 1938, 105 Ind.App. 75, 10 N.E.2d 744; Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 38 N.E.2d 909; and the verdict, therefore, stands as one in favor of the appellee and against the appellant company 'Assuming, as the appell......
  • Request a trial to view additional results

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