Volume 175 — Indiana Appellate Court Reports

1. TAXATION — <italic>Tangible Personal Property — Exemption.</italic> — Property held beyond the intended shipment date where the intended date was on or prior to the assessment date is exempt from the tax if the delay is due to circumstances beyond the control of the taxpayer. p. 87. 2. TAXATION — <italic>Tangible Personal Property — Exemption.</italic> — The terms of the contract do not necessarily determine the intended shipment date within the meaning of the regulation. Intent is a mental state. Although the last day by which shipment is permitted under the contract may be evidence of a party's intent, it is not controlling. p. 87. 3. TAXATION — <italic>Tangible Personal Property — Exemption.</italic> — Where grain was in the possession of the taxpayer only because the rail company was unable to timely provide the cars needed for shipment, the grain is exempt from the tax on tangible personal property. p. 88.

1. PROCEDURE — <italic>Amendment to Pleadings.</italic> — Under TR. 15(A), leave to amend pleadings shall be given when justice so requires, and the grant or denial of leave to amend is reviewable only for an abuse of discretion and, unless prejudice is shown, it will be presumed there was no error. p. 192. 2. PROCEDURE — <italic>Motion to Dismiss — TR. 12(B)(6).</italic> — A TR. 12(B)(6) motion changes the time within which a pleading may be amended as of right. If the motion is sustained, plaintiff has an absolute right to correct any deficiencies in his complaint within ten days. Thereafter, he may amend with permission of the court pursuant to TR. 15(A), which requires either written consent of the adverse party or leave of the court. TR. 12(B)(8). p. 194. 3. PROCEDURE — <italic>Motion to Dismiss — TR. 12(B)(6).</italic> — A complaint is subject to dismissal under TR. 12(B)(6) only when it appears to a certainty that the plaintiff would not be entitled to relief under any sets of facts. p. 195. 4. PROCEDURE — <italic>Special Pleading — TR. 9(B).</italic> — Failure to comply with the special pleading provisions of TR. 9(B) is not fatal. The remedies are a motion for a<page_number>Page 187</page_number> more definite statement or the use of discovery procedures where the complaint is dismissed, leave to amend is allowed. p. 195. 5. PROCEDURE — <italic>No Particularity Requirement in Pleading</italic> <italic>Punitive Damages.</italic> — The particularity requirement of TR. 9(B) does not apply to punitive damages. An award of punitive damages does not require proof of actionable fraud, and a complaint for punitive damages need not contain all of the elements required for actionable fraud. p. 195. 6. PROCEDURE — <italic>Real Party in Interest Objection.</italic> — A real party in interest objection under TR. 17(A) asserts that plaintiff is not the owner of the claim sued on and the objection is raised by means of a TR. 12(B)(6) motion. p. 196. 7. PROCEDURE — <italic>Capacity to Sue — Objection.</italic> — Where an action is brought in a representative capacity, want of title in plaintiff to the character in which he sues is a question of capacity to sue and an objection thereto should be made in accordance with TR. 9(A). p. 197. 8. PROCEDURE — <italic>Pretrial Orders — Objection.</italic> — Where a pretrial order has been entered, objections must be made at the outset to any aspect of the order, the same applies to the lack of a pretrial order. p. 198. 9. PROCEDURE — <italic>Pretrial Orders — Agreements.</italic> — The court shall make a pretrial order as to the agreements of the parties which limit the issues for trial. Where no agreement was reached, any error in the omission of a pretrial order is harmless. p. 198. 10. EVIDENCE — <italic>Withdrawn Pleadings.</italic> — Withdrawn, amended, or superceded pleadings, which disappear from the record as judicial admissions, are nevertheless admissible as evidence in contradiction and impeachment of the party's present claim. p. 199. 11. PROCEDURE — <italic>Objection to Instructions.</italic> — A party requesting an instruction to the jury is not required to make a specific objection if the court subsequently fails to give it. p. 201. 12. JURIES — <italic>Instructions.</italic> — An instruction may be refused if it merely varies the language of a given instruction. p. 202. 13. JURIES — <italic>Instructions.</italic> — Where a request to charge contains several propositions, one or more of which are incorrect, the trial court may refuse the entire request since it must be refused or given as a whole. p. 203. 14. TORTS — <italic>Death — Presumption Against Suicide.</italic> — The law presumes that death was not caused by suicide, but that it resulted from involuntary causes. The presumption is a rebuttable one. p. 204. 15. PROCEDURE — <italic>Objection to Instructions.</italic> — A party complaining of instructions actually given must make specific objection to the instructions or any error is waived. p. 206. 16. APPEAL — <italic>Standard of Review.</italic> — On appeal of sufficiency questions, the Court will not weigh evidence nor determine credibility, will look only to the<page_number>Page 188</page_number> evidence favorable to the appellee, and will affirm if there is evidence of probative value to establish each material element of the cause of action. p. 206. 17. DAMAGES — <italic>Requirements for Punitive Award.</italic> — Two prerequisites of a punitive award are 1) a serious wrong, tortious in nature, and 2) benefit to the public by such an award. p. 208.