Oppenheimer v. Craft

Decision Date16 June 1961
Docket NumberNo. 1,No. 19430,19430,1
Citation175 N.E.2d 715,132 Ind.App. 452
PartiesGustav OPPENHEIMER, Oppenheimer Bros., Inc., Appellants, v. Helen CRAFT, Appellee
CourtIndiana Appellate Court

Wilbur A. Royse, Indianapolis, Robert H. Moore, Valparaiso, Barbara Rondinelli, Gary, for appellant.

James J. McGarvey, Philip M. Cagen, Valparaiso, for appellee.

MYERS, Judge.

This is an action brought by appellee against appellants to recover damages for personal injuries alleged to have been sustained by appellee as the result of an automobile accident in the City of Valparaiso, Indiana, on September 10, 1958.

Appellee's complaint alleged that she was a guest-passenger in an automobile driven by her son, Charles R. Craft, and suffered injuries therein as the result of the operation of an automobile driven by appellant, Gustav Oppenheimer, for and in the course of the business of appellant, Oppenheimer Bros., Inc. Appellants filed an answer, amounting to a general denial, pursuant to Supreme Court Rule 1-3. The issues thus joined, the trial was held by a jury, which returned a verdict in favor of appellee in the sum of $15,000. A motion for new trial was filed, which was overruled. Judgment was entered for appellee in accordance with the general verdict. This appeal followed.

The facts most favorable to appellee reveal that Lincolnway is one of the main streets in Valparaiso, running east and west through the downtown section. One of the streets which intersects Lincolnway is known as Franklin Avenue, running in a north and south direction. At the time mentioned herein there was a building located on the northeast corner of this intersection known as the Farmers State Bank. Its front entrance was on Lincolnway. Around the corner on Franklin Avenue were drive-in windows, where business could be transacted from automobiles. There was a no-parking area directly in front of the bank on Lincolnway, designated by yellow paint on the curb of the sidewalk. Stop-and-go lights were located at the intersection to regulate motor vehicle traffic. There were also 'walk-wait' lights for pedestrians. At the time herein mentioned Lincolnway was a wide, two-way street, divided into six lanes, with a white line down the center, separating three west-bound lanes from three east-bound lanes. The lane next to the sidewalk was a little narrower than the other two lanes and was called a parking lane.

Appellee was a widow, 69 years of age, who lived with her son, Charles, in a house trailer at a trailer part in Valparaiso. He was employed at a steel mill and was the owner of a 1957 two-door automobile. Around noon, on September 10, 1958, he and his mother drove into town from the trailer part, taking with them a girl who lived nearby. He was intending to go to the drive-in section of the Farmers State Bank. He came from the east, driving westward on Lincolnway until he arrived at the intersection with Franklin Avenue. There he stopped, due to a red traffic light. At this time the girl passenger got out of the car, leaving Charles and appellee in the front seat as the only occupants.

There was a conflict in the testimony as to whether Charles was stopped in the parking lane or the center traffic lane of the three west-bound lanes. A witness, however, testified that Charles' car was in the center of the three lanes.

While Charles was waiting at the intersection, appellant, Gustav Oppenheimer, also traveling westward on Lincolnway, drove his car up to the left of and beside Charles' car, and stopped for the traffic light at the intersection. When the light turned green and pedestrians had cleared from the street, Charles started to turn right. At the same time said appellant, without any warning, likewise turned right directly in front of Charles. In order to avoid a collision, Charles jammed on his brakes, stopping his car before it struck appellant's. The sudden halt threw appellee violently from the front seat upon the windshield and dashboard of Charles' car, causing injuries to her head and body. She was taken to a hospital where she was confined for fifteen days. Upon her release she complained of headaches and dizziness, was unsteady on her feet, and had muscle spasms in her back. She went back to the hospital in November, 1958. Shortly before the trial of this case, in June, 1959, she had a dizzy spell and fell and broke her arm, necessitating another period of hospitalization. Prior to the accident she had cooked and done the housework in the trailer and had been in good health. Afterward, she 'wasn't any good at all' and had to have some one stay with her at all times. Her condition was diagnosed as a cerebral contusion, or bruise of the brain, and a sprain of the lumbar or lower portion of the back, with the possibility that a preexisting heart condition might have been aggravated by the physical stress or pain suffered. A physician's opinion was that the effects of the cerebral contusion, being dizziness, head pains and discomfort, would last the rest of her life.

The single assignment of error presented to us is the overruling of appellants' motion for a new trial. Such motion occupies 34 pages of the transcript and contains 20 specifications of error. We shall only take the specifications argued by appellants in their brief.

The first specification of error is that the court erred in permitting the appellee to amend her complaint after both parties had rested their case, and before argument, by adding two rhetorical paragraphs, by interlineation, being designated as paragraphs 12(a) and 12(b), which read as follows:

'12(a). That by and as a result of the severe injuries suffered by plaintiff as set forth herein, plaintiff's heart became impaired and plaintiff suffered a heart attack and was confined thereby to Porter Memorial Hospital, and said injuries to her heart are permanent.

'12(b). That by and as a result of the severe injuries suffered by plaintiff as set forth herein and in particular the injuries to her brain, plaintiff suffers from dizziness, pain in the eyes, difficulty seeing out of both eyes and double vision and that said spells of dizziness are episodic. That said episodic dizzy spells come upon plaintiff suddenly and without warning and during the course of one of said spells plaintiff fell and suffered a comminuted fracture of her right forearm; that said fracture has been treated by closed reduction but that plaintiff will suffer impairment to said arm for the balance of her life in an amount of 25%.'

The motion for leave to amend was based upon § 2-1068, Burns' Ind.Stat., 1946 Replacement, which provides, in part, as follows:

'After trial and before final judgment, the court may, in its discretion and upon such terms as may be deemed proper for the furtherance of justice, order that any pleading be amended by correcting any mistake in name, description, legal effect, or in any other respect; or by inserting, striking out, or modifying any material allegation, in order that the pleadings may conform to the facts proved, where the amendment will not deprive a party of any substantial right.'

Appellants argue that there was not a scintilla of evidence to justify amendment 12(a); that the allegations of dizziness, pain in the eyes, difficulty in seeing out of both eyes, double vision, and the fracture of the arm, set forth in amendment 12(b), were about conditions which were known to appellee six months before trial; that by permitting these amendments after trial, appellants were denied the right to cross-examine the witnesses and to bring in other witnesses to rebut the assertions; that this constituted an abuse of discretion on the part of the trial judge.

As to paragraph 12(a), there was some evidence to the effect that appellee had a heart condition. Her physician, Dr. Martin J. O'Neill, testified that she had an arteriosclerotic heart disturbance, or hardening of the blood vessels, and anginal pains in her chest due to the hardening of the coronary blood vessels. He was asked the following question on direct examination:

'Q. Now, Doctor, did the condition you found of her heart, could that have been triggered or aggravated as result of the injuries Mrs. Craft was hospitalized for in September?

'A. Any physical strees or pain might produce anginal pains with the pre-existing condition she has.'

There was also testimony by Dr. Richard Nilges, a neurosurgeon, which is as follows:

'Q. Doctor, you stated, on the brain, that your diagnosis is that she has a contusion or bruising of the brain. Is that correct?

'A. Yes, sir.

'Q. And do you have an opinion as to how long that condition will persist?

'A. The effects which she presently has as a result of this contusion--in other words, the episodes of dizziness or attacks of dizziness, feeling of blacking out, and the head pain and discomfort--probably will last the rest of her life.'

Dr. O'Neill further testified that on June 4, 1959, appellee had a dizzy spell, blacked out, fell and broke her right arm. He stated that she would have a 25 per cent. permanent loss of use of her right arm.

It is a well-established rule that the trial court may use its discretion in amending, or refusing permission to amend, pleadings after trial and before final judgment. Unless there is a clear abuse of this discretion, and the complaining party has been harmed, and his substantial rights taken from him, the trial court's action will not be disturbed. Haley v. Wilson, 1932, 94 Ind.App. 402, 181 N.E. 46.

The complaint herein was filed September 22, 1958. Rhetorical paragraph 12 thereof alleged that appellee was confined to the hospital at that time because of her injuries; that treatment of her was in progress which would require medical, surgical, and hospital services for a long and indefinite period of time, the details of which were not known then. The trial of this cause commenced on June 22, 1959, or nine...

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    ...harmed and his substantial rights taken from him, the trial court's action will not be disturbed. See also, Oppenheimer et al. v. Craft, 132 Ind.App. 452, 175 N.E.2d 715 (1961). In General Outdoor Adv. Co. v. LaSalle Realty Corp., 141 Ind.App. 247, 218 N.E.2d 141 (1966), Judge Hunter, speak......
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