Opinion
Rehearing Denied March 12, 1973. Opinion Superseded, 300 N.E.2d 335.
Keith C. Reese and William T. White, Jr., of Rocap, Rocap, Reeses&s Young, Indianapolis, for Ayr-Way Stores, Inc.
Emerson Boyd and Robert F. Zoccola, of Locke, Reynolds, Boyds&s Weisell, Indianapolis, for The E. T. Rugg Co.
Forrest Bowman, Jr. and George E. Martz, of Martz, Bowmans&sKammen, Indianapolis, Parr, Richey, Obremskey, Pedersens&sMorton, Lebanon, for appellee.
LYBROOK, Judge.
This appeal arises from a damage action wherein the jury returned a verdict for $80,000 in favor of Plaintiff-Appellee, Randall Scott Chitwood (Chitwood) and against Defendants-Appellants, Ayr-Way Stores, Inc and The E. T. Rugg Company (Ayr-Way and Rugg). The judgment was for personal injuries caused by an allegedly defective lawn mower, manufactured by Rugg and sold to Chitwood's father by Ayr-Way.
Appellants' primary contention is that the trial court erred in granting, over appellants' objections, Chitwood's Motion to Amend the Complaint during the trial at the close of plaintiff's case. In the alternative, appellants maintain that their request for a continuance should have been granted. Before discussing these issues, a brief recitation of certain facts is necessary.
On May 30, 1966, Michael Chitwood, father of Randall Scott Chitwood, age four, purchased a riding lawn mower at an Ayr-Way store, after looking at mowers displayed in the window. The mower purchased was in a sealed cardboard carton which was placed in Chitwood's car by Ayr-Way employees. When he got home Chitwood removed the mower from the carton and prepared it for use by installing the steering wheel, putting in oil and gas and adjusting the cutting height. Instructions were included in the carton.
This particular model had a single operating pedal on the right hand side. Depressing the pedal started the mower in motion and releasing the pedal was supposed to cause the mower to stop.
Chitwood's brother, Wayne, assisted him in removing the mower from the carton. Michael Chitwood operated it for about five or ten minutes in mowing the lawn and then Wayne Chitwood tried the mower out. When Wayne first tried to stop it, it stopped satisfactorily. Wayne Chitwood was mowing in the back yard when he came to a junction of two sidewalks. After stoping the mower, he put it in reverse and started to back up. When he looked over his shoulder he saw Randall Chitwood, the plaintiff, stading behind him. Randall fell down and Chitwood stated that he released the pedal but the mower continued on, running over the plaintiff. This resulted in severe and permanent injuries, including the amputation of the great toe and distal head of the metatarsal bone on his left foot and severe lacerations to this lower lumbar region and buttocks.
Chitwood's complaint, filed January 8, 1968, was in two paragraphs, alleging a breach of express warranty and negligence by both defendants.
After a pre-trial conference was held, a trial date was set and trial commenced on June 2, 1971. One June 7, 1971, three and one-half years after the filing of the original complaint, and at the close of plaintiff's evidence, Chitwood moved to amend his complaint 'to conform to the evidence', pursuant to TR 15(B), IC 1971, 34-5-1-1. The amendment consisted of two additional paragraphs, one alleging strict liability and the other implied warranty.
Ayr-Way and Rugg objected long and strenuously to the amendment, and in the alternative, requested a continuance.
Appellants contend that the granting of the motion to amend and the failure to grant a continuance, both surprised and prejudiced them by forcing them to defend two entirely new issues, without sufficient time to prepare therefor.
Before these questions can be properly considered, it is necessary that we closely examine the provisions of TR 15(B), which reads:
'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time even after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.'
Chitwood argues that since TR 15(B) provides for an automatic amendment to the pleadings to make them conform to the evidence, his motion to amend can in no way prejudice appellants. He further contends that the matter of a continuance is not relevant because TR 15(B) provides for a continuance only where there were objections to evidence.
Our search has yielded but two Indiana cases dealing with his problem, since the advent of the new rules. The first is Indianapolis Transit System, Inc. v. Williams (1971), Ind.App., 269 N.E.2d 543, where the court held:
'Whether the 'issues' to be tried in any law suit are formed by the pleadings or in a pre-trial order, their function is merely to provide the parties and the court with an itinerary for the journey through the trial. Either party may timely demand strict adherence to the predetermined route or, if deviation is permitted, the time necessary to prepare to meet the new issue. But when the trial has ended without objection as to the course it took, the evidence then controls. Neither pleadings, pre-trial orders, or 'theories' postulated by either party should then operate to frustrate the trier of fact in finding the facts which that evidence (including all reasonable inferences the trier may draw therefrom) convinces him (whether he be a judge or juror), by a preponderance thereof, is true or block him from awarding the relief, if any, which the rules of substantive law say those facts merit.'
The second, Aldon Builders, Inc. v. Kurland (1972), Ind.App., 284 N.E.2d 826, comes nearer to the problem at hand. There, the court said:
'Our examination of the entire record fails to disclose that the issue of rescission was ever litigated or tried by the parties. Evidence brought into the record collaterally on pleaded issues may reflect superficially upon the theory of rescission. The issue of rescission was never tried by the parties during the trial.'
The court then quoted Hacker v. Review Board (1971), Ind.App., 271 N.E.2d 191, for the premise that:
'(F)ailure to object is not the only requirement necessary to impliedly litigate a new issue. Both parties to the proceedings must litigate the new issue; and the evidence to support the introduction of a new issue cannot be adduced under cover of asking questions about an already pleaded issue.' (Citations omitted.)
The court in Aldon Builders, supra, further held:
'A party is entitled to some notice that an issue is before the court which has not been pleaded or has not been agreed to in a pretrial order. This is especially true where the new issue is not unequivocally clear by the evidence being submitted. This is not being technical. This is being fair. A party should be given an opportunity to meet the issues which the court is considering. The evidence shown by this record would not be sufficient notice to a reasonably competent attorney that the issue of rescission is being considered by the court.'
"The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried, even though there is evidence in the record--introduced as relevant to some other issue--which would support the amendment. This principle is sound, since it cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial." (Citations omitted.)
Although the court in Aldon was dealing with a situation where judgment was entered on a theory never introduced at trial, the same rules and logic apply in a situation where the plaintiff interjects unpleaded theories at the close of his case.
Here, the question becomes, 'Did Ayr-Way and Rugg impliedly litigate the issues of strict liability and/or implied warranty and did the plaintiff's evidence tending to support these theories make it readily apparent, to a reasonably competent attorney, that these theories were at issue?'
We think not. A careful review of the record indicates no evidence which bears so directly or unequivocably upon the two theories presented in the amendment, that a reasonably competent attorney would have squarely recognized these issues in the trial.
The purpose of TR 15 was to allow amendments to the pleadings where the parties had consented to their insertion into the trial. In the case at bar, the proof of the second set of issues was so implicit in the proof of the first that we cannot say that a reasonably competent attorney would have discerned the difference.
The record shows no express consent of the parties to try the new and added theories. Nor is there anything in the record from which such consent may be implied. By its dictionary definition consent means to agree and concur in. An analogy may be found in the law of contracts. Every contract, whether express or implied, must arise from a meeting of the minds of the parties. There was no evidence of any such understanding in this case.
There must be more from which to imply a party's consent than the mere failure to object to certain evidence.
A number of important steps preceded plaintiff's amendment and the defendants were foreclosed from retracing them. These include:
(1) Pre-trial conference;
(2) Discovery;
(3) Trial preparation, including research;
(4) Voir Dire examination;
(5) Opening statements;
(6) General conduct of the defense during plaintiff's case in chief, including cross-examination.
The granting of the amendment and denial of a continuance also forced defendants to proceed with the trial without sufficient time to secure other evidence, expert or otherwise, relative to the two newly injected theories.
Prior to the amendment the trial court had found that Ayr-Way was not liable under the express warranty of Rugg. The only remaining thread tying Ayr-Way to the law suit was the single allegation in Paragraph II of the complaint charging Ayr-Way with failure to inspect to lawn mower which had been sold in a sealed carton.
After the amendment, however, Ayr-Way suddenly found itself in a particularly difficult position. Having prepared its defense to the sole remaining issue, it was suddenly confronted with two new theories against which it was forced to immediately defend.
A continuance was the absolute minimum relief which would have been fair to these defendants.
We accordingly hold in the case at bar that (1) Appellants did not expressly or impliedly consent to trial on the theories introduced by the amendment, (2) Reasonably competent counsel would not have necessarily discerned their existence and (3) The failure to grant a continuance in the face of these surprising developments was prejudicial to defendants and warrants a new trial.
One of the purposes of the new rules was to clearly delineate the issues prior to trial, thereby avoiding 'trial by ambush' which occurred on occasion prior to the advent of the new rules. As this court said, in Cheathem v. City of Evansville (1972), Ind.App., 278 N.E.2d 602:
'The detailed pleading of facts under the old code pleading has been dispensed with but not the disclosure by the claimant of the theory upon which his claim is based.' (Our Emphasis.)
In view of the above, a consideration of the remaining assignments of error is not required.
Judgment reversed and cause remanded for a new trial.
ROBERTSON, P. J., and LOWDERMILK, J., concur.