City of Richmond v. Land-Dilks Co.
City of Richmond v. Land-Dilks Co.
Opinion of the Court
This is an action by appellee to recover damages to its lumber, veneer and parts of kitchen cabinets, alleged to have been caused by the negligence of appellant, in causing large quantities of surface water to flow into the basement of appellee’s factory building. A demurrer for want of sufficient facts hav
The record discloses that during the course of the trial, and after the introduction of the evidence had been commenced, appellee, by leave of court, amended the allegations of its complaint, as to the extent of the damage sustained, by substituting for the words “and parts of kitchen cabinets, so that the same were rendered worthless and of no value,” the following: “and parts of kitchen cabinets, so that some of them were rendered entirely worthless and of no value, and a part of the same were rendered partially worthless, and of less value than they were before they were so damaged.” Appellant thereupon filed its motion, supported by affidavit, for a continuance, based on the fact of said amendment, in order to prepare to meet the allegations 'of the complaint as changed thereby. This motion being overruled, the trial of the cause proceeded to judgment. Appellant predicates error on the action of the court in permitting said amendment, and in overruling its motion for a continuance. We shall first consider whether it was necessary for appellee to amend its complaint as stated, in order to introduce evidence of partial loss, as well as of total loss, as alleged. It is obvious that, if there had been no amendment of the complaint, and the court had permitted appellee to make proof of partial loss, over appellant’s objections, the result would have been only a variance, at most. This, however, would not have been fatal to appellee’s recovery, unless such variance would have been material. By the terms of the statute, no variance between a pleading and the proof is deemed material,
Appellant has not stated any proposition or point with reference to any other reason on which its motion for a new trial is based, except the one relating to the admission of certain evidence from the witness Walter Vossler. No question is presented in that regard, however, as appellant has failed to set out in its brief the reasons, if any, stated to the trial court as the basis for its objections to the admission of such evidence, and to state that any exception was taken to the ruling of the court thereon. American Fidelity Co. v. Indianapolis, etc. Fuel Co. (1912), 178 Ind. 133, 98 N. E. 709; Chaney, Admr. v. Wood (1917), 63 Ind. App. 687, 115 N. E. 333. No reversible error being shown, the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.