Underwood v. Ferguson
| Decision Date | 09 April 1956 |
| Docket Number | No. 18766,18766 |
| Parties | Leo UNDERWOOD, Appellant, v. Berniece FERGUSON, Appellee. |
| Court | Indiana Appellate Court |
Arthur A. Beckman, C. D. Rotruck, Anderson, Christian, Waltz & Klotz, Noblesville, for appellant.
Jerrald O. Finney, Anderson, Campbell, Campbell & Malan, Noblesville, for appellee.
The appellee suffered personal injuries as the result of an automobile collision on a public highway in Madison County, Indiana, at about 6:30 in the evening of January 22, 1949. Charging that the appellant's negligence was the sole cause of said collision the appellee brought this suit and recovered judgment in the sum of $3,000.
The case was tried to a jury upon a complaint which sought recovery on the theory that the appellant was driving an automobile in a southerly direction along State Highway No. 9 about 35 feet immediately ahead of an automobile driven by the appellee's husband and in which she was riding as a guest passenger. That both cars were proceeding in the same direction at approximately the same speed when the appellant suddenly stopped his car without any warning whatsoever and the driver of the car in which the appellee was riding, having no opportunity to avoid the collision, struck the appellant's car as the result of which the appellee was injured. This complaint was put at issue by an answer in two paragraphs, the first of which is in conformity to Rule 1-3 and the second of which pleads contributory negligence on the part of the driver of the appellee's car and seeks to impute his negligence to the appellee on the theory that they were then engaged in a joint venture.
During the trial it developed, without dispute, that there was a third car involved in the incident as a part of the res gestae so to speak. This car was driven by one Robert Foley and was traveling in the same direction as were the Underwood and Ferguson cars. As the three cars approached the place of the accident the Underwood car was first, the Foley car second and the Ferguson car third. Such being the position of the cars the appellee concluded that the proof did not sustain her allegation that the appellant's car was immediately ahead of hers so she asked and was granted leave to amend her complaint by striking out the word 'immediately.' The appellant thereupon filed a third paragraph of answer pleading the two year statute of limitations. A demurrer to this paragraph of answer was sustained and the propriety of that ruling is the first question presented by this appeal.
The statute of limitations was pleaded upon the theory that by amending her complaint as above indicated the appellee pleaded a new and different cause of action which, not having been commenced within two years from the date it arose, could not be prosecuted. We are unable to follow appellant's argument in support of this proposition. It seems clear to us that the appellee's complaint with the word 'immediately' stricken therefrom, counts on identically the same charge of negligence as did the complaint before the amendment. The presence of the word 'immediately' in the original complaint has no bearing on its theory. With or without the amendment, the cause of action pleaded is the appellant's failure to give the signals required by law before stopping or suddenly decreasing the speed of his car in a situation where the appellee's car would necessarily be affected thereby. See Secs. 47-2023, 47-2024, 47-2025, Burns' 1952 Replacement. Our Code of Civil Procedure, Burns' Ann.St. § 2-1068, authorizes the court to permit a pleading to be amended by 'inserting, striking out or modifying any material allegations in order that the pleading may conform to the facts proved, where the amendment will not deprive a party of any substantial right.' Chicago, etc., R. Co. v. Collins, 1924, 82 Ind.App. 41, 142 N.E. 634, 143 N.E. 712. Had the amendment in question set up a new cause of action which was barred by the statute of limitations it would have been error to have sustained a demurrer to an answer pleading the statute. That, however, is not the present situation. No new cause of action was pleaded by the amendment and we fail to see in what respect the appellant was deprived of any substantial right thereby. We find no error in connection with this phase of the appeal.
The trial court is next charged with error in overruling the appellant's motion for a directed verdict in his favor made at the close of all evidence in the case. A decision on this contention requires a scrutiny of the evidence most favorable to the verdict. Such evidence indicates that the accident in controversy happened at about 6:30 in the evening of January 22, 1949, at the foot of a winding hill on State Highway No. 9 a short distance south of the town of Alexandria in Madison County, Indiana. At that time and...
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