Wolf Produce & Transp. Co. v. Lang Trucking, Inc.

Decision Date11 January 1965
Docket NumberNo. 2,No. 20107,20107,2
Citation136 Ind.App. 571,203 N.E.2d 308
PartiesWOLF PRODUCE AND TRANSPORTATION COMPANY, Inc., and Jerry L. Harmon, Appellants, v. LANG TRUCKING, INC., Appellee
CourtIndiana Appellate Court

[136 INDAPP 572] McDonald & McDonald, Princeton, for appellants.

Steers, Klee, Jay & Sullivan, Indianapolis, Robert J. Fair, Princeton, for appellee.

HUNTER, Judge.

This appeal arises from an action instituted by plaintiff-appellee against defendants-appellants to recover property damages allegedly resulting from the negligent operation of appellants' vehicle. The trial proceeded without the intervention of a jury and the court's judgment was entered for the appellee.

Appellants assign as alleged errors that the decision of the trial court is not sustained by sufficient evidence and that such decision is contrary to law. The crux of these general specifications is grounded on the question of whether the trial court erred in allowing an amendment to the complaint after the trial to conform to the evidence.

The proceedings below pertinent to this question are as follows: One of appellee's allegations of fact in his complaint in rhetorical paragraph 7 in part stated that, 'defendant carelessly and negligently drove said truck into the truck owned by the plaintiff * * *.' Prior to the commencement of the trial, appellee orally requested to amend his complaint by striking the words 'into the truck owned by the plaintiff' and by inserting in lieu thereof the words, 'into the path of the truck owned by the plaintiff, requiring plaintiff's driver to swerve to avoid collision and thereby to strike a fixed object.' Appellants objected to this change before the trial on the sole ground [136 INDAPP 573] that the amendment would constitute a new cause of action. The judge then asked appellants if they were asking for a continuance; there was no reply to this question in the record. The court then overruled the objection and stated 'as we get into it we will find out'. However, the court never ruled upon the particular motion made before trial by the appellee.

At the close of both plaintiff's and defendants' evidence, the defendants-appellants moved to strike the evidence tending to show that the occurrence was other than a collision. However, defendants never objected to the introduction of such evidence during the trial and the court properly overruled appellants' motion to strike the evidence. See Beeler v. State (1952), 230 Ind. 444, 450, 104 N.E.2d 744.

After conclusion of the trial, appellee filed a written motion to amend his complaint by interlineation to conform to the evidence in substantially the same manner as he had requested before trial. The pertinent part of that motion is as follows:

'1. That rhetorical paragraph seven of plaintiff's amended complaint be amended by interlineation, by inserting on the second line thereof immediately following the words 'carelessly and negligently drove said truck into', the words 'the path of'.

'2. That rhetorical paragraph seven of said amended complaint be amended by interlineation, by inserting on the third line thereof immediately following the words 'owned by the plaintiff', the words 'requiring plaintiff's driver to swerve to avoid a collision, and thereby to strike a fixed object,'.

'3. That rhetorical paragraph seven of plaintiff's amended complaint, after amendment by interlineation, shall then read in its entirety:

"7. As plaintiff's truck was abreast of defendant's truck, defendant carelessly and negligently drove said truck into the path of the truck owned [136 INDAPP 574] by the plaintiff, requiring plaintiff's driver to swerve to avoid a collision, and thereby to strike a fixed object, damaging said truck as hereinafter more specifically described."

The court sustained the motion to amend and entered judgment for plaintiff. Thereafter, appellants filed written objections to the granting of said motion to amend. They later filed a motion for a new trial which essentially alleged error by the court in granting the motion to amend.

Appellants partially base allegation of error on the fact that the motion to amend submitted in opening statement was oral and did not conform to Supreme Court Rule 1-2A which provides in part:

'Motions to Amend. Every motion to insert new matter or to strike out any part or parts of any pleading, deposition, report or other paper in the cause shall be made in writing and shall set forth the words sought to be inserted or stricken out * * *.'

The appellants cannot predicate any error on the ground that the motion was oral. Their only basis for objection at the time the motion was submitted prior to the commencement of the trial was to the effect that the proposed change in wording would cause the complaint to constitute a new cause of action. Appellants' obligation at said time was not premised on appellee's failure to comply with Supreme Court Rule 1-2A, supra. They waited until after the submission of appellee's case before objecting on the specific ground that the motion was not in writing. To present a question for review upon the ground that some procedure in the trial court is objectionable, appellant must make timely objection at the trial court level. Azimow v. Stoker (1960), 131 Ind.App. 195, 204, 166 N.E.2d 887; 4 C.J.S. Appeal & Error Sec. 246, p. 764. Also, it is a [136 INDAPP 575] basic rule that, on appeal, appellant is confined to the specific objection made in the trial court. Tompkins v. Smith et al. (1952), 122 Ind.App. 502, 106 N.E.2d 487; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice (1963 Pocket Part), Sec. 1993, p. 163. In this case, appellants did not timely object at the trial on the specific ground of error that they are now urging on appeal. They have therefore waived any possible error insofar as that which may be considered here.

Nevertheless, the oral motion before trial was never ruled upon. There cannot be error committed in the trial court as to a motion, when that motion was never acted upon by the court. Brownlee, Administrator v. Hare et al. (1878), 64 Ind. 311, 317; Zaring v. Home Stove Co. (1932), 95 Ind.App. App. 215, 217, 183 N.E. 133.

Appellants further claim that the granting of the motion to amend the pleadings to conform to the proof after trial and before judgment changed the cause of...

To continue reading

Request your trial
11 cases
  • Lloyd v. Weimert
    • United States
    • Indiana Appellate Court
    • May 6, 1970
    ...or on appeal, except upon the specific objections made as above required.' In the case of Wolf, etc., et al. v. Lang Tr., Inc. (1965) 136 Ind.App. 571, at pages 574--575, 203 N.E.2d 308, at page 310, the court 'To present a question for review upon the ground that some procedure in the tria......
  • General Outdoor Advertising Co. v. La Salle Realty Corp.
    • United States
    • Indiana Appellate Court
    • June 30, 1966
    ...452, 175 N.E.2d 715; Cauldwell Inc., et al. v. Patterson (1961), 133 Ind.App. 138, 177 N.E.2d 490; Wolf Produce and Transp. Co. v. Lang Trucking, Inc. (1965), Ind.App., 203 N.E.2d 308. In some of these cases the problems involved situations where amendments would result in a change of the c......
  • Colvin v. Bowen
    • United States
    • Indiana Appellate Court
    • February 4, 1980
    ...that motion was never acted upon by the trial court. Jaudon v. State (1970), 255 Ind. 114, 262 N.E.2d 851; Wolf, etc. et al. v. Lang Tr., Inc. (1965), 136 Ind.App. 571, 203 N.E.2d 308. Cause remanded with instructions to the trial court to re-enter a judgment for Remanded. GARRARD, P. J., a......
  • Norrington v. Smith
    • United States
    • Indiana Appellate Court
    • December 12, 1972
    ...where there had been no timely objection to the evidence which was the subject of the motion. In Wolf Produce and Transp. Co. v. Lang Trucking, Inc. (1965), 136 Ind.App. 571, 203 N.E.2d 308, this court ruled upon an analogous situation as follows: 'At the close of both plaintiff's and defen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT