J. I. Case Co. v. Sandefur

• Decision Date: 08 April 1964
• Docket Number: No. 30572,30572
• Citation: 197 N.E.2d 519,245 Ind. 213
• Parties: J. I. CASE COMPANY, Appellant, v. Loid SANDEFUR, Appellee. J. I. CASE COMPANY, Appellant, v. Grace SANDEFUR, Administratrix of the Estate of Loid Sandefur, Deceased, Appellee.
• Court: Indiana Supreme Court

Page 519

197 N.E.2d 519

245 Ind. 213

J. I. CASE COMPANY, Appellant, v. Loid SANDEFUR, Appellee.

J. I. CASE COMPANY, Appellant, v. Grace SANDEFUR, Administratrix of the Estate of Loid

Sandefur, Deceased, Appellee.

No. 30572.

Supreme Court of Indiana.

April 8, 1964.

Wilbur F. Pell, Jr., Shelbyville, Hugh E. Reynolds, Jr., Indianapolis, Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel, for appellant.

George R. Tolen, Jr., Donald L. Burnner, Shelbyville, Brunner, Brown & Brunner, Shelbyville, of counsel, for appellee.

ARTERBURN, Judge.

This case comes to us on transfer from the Appellate Court under Acts 1901, ch. 247, § 10, p. 565; 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Repl. See J. I. Case Company v. Sandefur (1963), 193 N.E.2d 647 for opinion of Appellate Court.

This is an appeal from a judgment in a damage suit brought by Loid Sandefur in 1960 for personal injuries resulting from the use of a combine manufactured by the J. I. Case Company in June, 1954. The Combine had previously been owned by one Knoy and was sold to Sandefur in February, 1957.

The action is based upon an alleged latent defect in the convering or lid housing the auger. It is stated that through latent defects the covering or lid gave way when Sandefur stepped on it while the machine was in operation and his foot was caught in the auger and he was thereby injured.

In September, 1960, before the case was tried, Sandefur died from causes other than that of the accident. His wife, as administratrix, was substituted as a party plaintiff without objection. Upon trial, judgment was rendered by the trial court for the plaintiff in the amount of $5,678.05. Upon appeal to the Appellate Court, in a short opinion by Clements, Judge, the court reversed the judgment on the ground that the administratrix could not be substituted as a party plaintiff under the authority of Malone v. Conner (1963), Ind.App., 189 N.E.2d 590. See also: Stewart v. Marson Construction Corporation (1963), Ind., 191 N.E.2d 320.

The appellee, on petition to transfer, complains that the Appellate Court decision was rendered on this point which was not presented in the trial court or briefed or argued on appeal; that there was no opportunity for the parties to present their views upon this unraised question; and that they have been as a result, unfairly dealt with on appeal.

It is always a dangerous and hazardous matter for any court to attempt to determine an issue without the help of the counsel in the cause and without giving the parties an opportunity to present their respective viewpoints. Such procedure is to be avoided if at all possible. What happened here is proof of that statement. The case cited by the Appellate Court, as well as the case of Stewart v. Marson Construction Corporation, supra, decided by this court, does not support the Appellate Court's reversal. In the cited cases relied upon, a prompt objection by the to the continuance of the action by the substituted party in place of the deceased plaintiff. In one case it was by demurrer in the trial court. In the other case it was by objections filed in our court on appeal at the time of the death of the appellant, when the substitution of parties was petitioned.

In the case before us no objection was made at any time in the proceedings to the substitution of the administratrix for the deceased party, Loid Sandefur. In fact, the appellant company suggested the death of plaintiff and substitution of the administratrix as a party. During the trial the appellant company relied upon time to time upon the statute in question in making objections for the limitation of damages.

We have held the survival statute, Burns' § 2-403 (1946 Repl.) is applicable to the time of the accrual of the action, rather than with reference to the time of the death of the plaintiff, and if objections had properly been made at the time to the substitution of parties, the cases referred to would have been applicable. However, the appellant company waived any objections and raised none in the trial and never did question the right to continue the action.

To the surprise of all parties, the Appellate Court decided the appeal upon this technical point without considering the merits of the case.

So long as a court has general jurisdiction of the subject matter to which a case belongs, a defendant may waive his right to object to the jurisdiction by failing to make timely and specific objections thereto. The objections should be raised at the earliest opportunity. I.L.E. Courts § 7, p. 417; Patterson, Administratrix v. Scottish American Mortgage Company (1886), 107 Ind. 497, 8 N.E. 554.

Far too often there is an inclination in a law suit to attempt to convert a legal issue into one of 'jurisdiction' and from that point contend all actions of the court are void, and that the question of jurisdiction may be raised at any time or that the proceedings are subject to collateral attack and are a matter for original writs in this court. We look with disfavor upon points raised for the first time on appeal in the higher court or in original actions without first raising the issue with specific objections thereto at the first opportunity in the trial court.

The trial court had jurisdiction of the subject matter in this case when it was filed. The right of a party to maintain a suit as a plaintiff or substitute plaintiff must be raised by a proper pleading or motion questioning such authority at the first opportunity, or the objection is waived. In one of the cases cited above the point was raised by a demurrer to the complaint, Malone v. Conner (1963), Ind.App., 189 N.E.2d 590. In another by a motion to dismiss, Stewart v. Marson Construction Corporation (1963), Ind., 191 N.E.2d 320.

The Appellate Court has erred and we must therefore grant transfer in this case.

We come next to the merits of the appeal. The evidence is undisputed in the following particulars:

On October 4, 1958, Sandefur was in the field with the combine when his wife and daughter heard him scream for help. They saw him standing on the machine in a position which his wife said was over the lid or top covering the auger. When they got to him in the filed, he was off the machine, sitting by the side of the road holding his injuries foot and ankle. When the machine was examined, witnesses testified that the cover over the auger, which might be described as a wooden lid with hinges thereon, was loose and sticking down into the auger trough; there was blood on the auger and the frame and Sandefur's shoe with blood on it was on the ground.

Mr. Tolen, an attorney whom the plaintiff had consulted, testified that he examined the combine about four months later and found the screws which hold the hinges to the board had been ripped and torn from the wood. However, the stripper board, from which it is claimed these screws were torn, was missing at time of trial and not produced at the trial, although the lid to which the hinges were attached and which came loose and upon which it is claimed Sandefur was standing, was placed in evidence at the trial. Mr. Tolen also testified that when he placed the lid back on the auger trough as a cover, there was a clearance space of approximately half an inch between the underside of the lid and a safety catch which was supposed to support it. Evidence showed that good mechanical construction required that there should have been only 1/16 of an inch space between the lid and the catch supporting it. There was testimony to the effect that this extra space (1/2 inch), when weight was placed upon the lid, would cause the lid to tear the hinge loose and allow it to slip into the trough where the auger was turning.

Since Mr. Sandefur was deceased at the time the trial took place, his version of how the accident occurred was not in evidence.

The appellant company contends that there is no evidence of how the accident happened which injured Mr. Sandefur's foot and, at most, the evidence of Mr. Tolen as to the condition of the combine and the defects with reference to the catch under the lid and the screws being pulled out, is too remote (approximately 4 months thereafter) to be of any probative value.

Considerable testimony was presented by so-called experts. Some of them stated that the lid and stripper board was made out of cotton wood and should have been made out of harder substance or metal to hold the screws. On the other hand, a manual printed by the defendant company warned all users of the combine not to stand on the machine while it was in operation; that the power should be turned off if any attempt was made to clean or adjust any part of the machine. The plaintiff-appellee, however, offered testimony to the effect that it was necessary to stand at the place Sandefur was standing while the auger was operating in...