la Barre v. City of Waterbury
| Decision Date | 13 July 1897 |
| Citation | 69 Conn. 654,37 A. 1068 |
| Court | Connecticut Supreme Court |
| Parties | LA BARRE v. CITY OF WATERBURY. |
months after such amendment, to render judgment for substantial damages, though defendant filed no further pleading.
Appeal from district court, New Haven county; Albert P. Bradstreet, Judge.
Action by Amelien La Barre against the city of Waterbury to recover damages for personal injuries claimed to have been caused by a defective highway. Facts found, and judgment rendered for the plaintiff for $500, and appeal by the defendant for alleged errors in the rulings of the court. No error.
Lucien F. Burpee, for appellant.
Edward F. Cole, for appellee.
HALL, Special Judge. The complaint in this action, to recover damages for a personal injury sustained by the plaintiff by reason of snow and ice upon a sidewalk in Waterbury, contained no allegation that notice had been given the defendant, as required by section 2673 of the General Statutes. The defendant having suffered a default, the plaintiff, upon a hearing in damages to the court, offered to prove the fact that such notice had been given. To the admission of this evidence counsel for defendant objected upon the ground that the complaint contained no allegation that notice had been given, and that the notice offered was insufficient, in that it did not properly describe the defect complained of in the highway. The defendant does not complain of any ruling of the court in admitting this evidence. The record does not show that the court received it, or made any ruling upon the questions presented by the defendant's objections; and as, in the defendant's brief, it is conceded that the points thus raised were never decided, we assume that the evidence so offered was not received, and that, in view of the subsequent proceedings, the court deemed it unnecessary to make any ruling upon these questions. The record discloses that some time after the hearing the court ordered the plaintiff to amend his complaint by setting forth the fact that notice of his injury had been given to the defendant, and of the nature and cause thereof, and of the time and place of its occurrence; that the plaintiff thereupon filed a motion to be permitted to amend his complaint in compliance with the direction of the court, which amendment was allowed; that the court informed counsel for the defendant that, "if he desired, he could plead anew, or be heard further with his witnesses"; that several months thereafter the court rendered judgment for substantial damages, the defendant, in the meantime, having failed either to file an answer or other pleading, or to present further evidence upon the hearing in damages. By his appeal the defendant complains of the action of the court in so ordering the plaintiff to amend his complaint, and in rendering judgment after the amendment, and before the pleadings had been completed. Though the plaintiff had not an absolute right to amend his complaint during the hearing in damages (Gulliver v. Fowler, 64 Conn. 565, 30 Atl. 852; Trustees, etc., v. Christ Church, 68 Conn. 372, 36 Atl. 797), the court, under sections 1023-1027 of the General Statutes, had discretionary power to permit the amendment to be made. The time before judgment within which the amendment might be allowed was within the court's discretion, and the exercise of such discretion cannot be reviewed. By section 6, rule 3, under the practice act (Practice Book, p. 14), the court may permit an amendment at any stage of the trial. The defendant suffered no injury from the fact that the court ordered the plaintiff to make an amendment. The allowance of the amendment, upon the plaintiff's motion, was the only act of the court which affected the defendant's interests. But we see no impropriety in the court suggesting, or even directing, the amendment under the circumstances shown by the record. Sufficient authority for such direction may be found in section 9 of the practice act (Practice Book, p. 4).
There was no error in the action of the court in rendering judgment for substantial damages, after the amendment was allowed, and before further pleadings were filed. It is true...
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...Conn. 436, 445, 143 A. 568; World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 644, 136 A. 681; LaBarre v. Waterbury, 69 Conn. 554, 556, 37 A. 1068. While the plaintiff argues, with some justification, that the defendant should be estopped from asserting this claim in......
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Crowell v. Palmer
...should have relief, might permit, or even direct, an amendment to the prayers for relief to accomplish that end. La Barre v. Waterbury, 69 Conn. 554, 556, 37 A. 1068; Epstein v. M. Blumenthal & Co., Inc., 114 Conn. 195, 199, 158 A. 234; Frosch v. Sears, Roebuck & Co., 124 Conn. 300, 304, 19......
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