Daly v. Everett Pulp & Paper Co.

• Decision Date: 13 March 1903
• Citation: 71 P. 1014,31 Wash. 252
• Court: Washington Supreme Court
• Parties: DALY v. EVERETT PULP & PAPER CO.*

71 P. 1014

31 Wash. 252

DALY v. EVERETT PULP & PAPER CO.*

Supreme Court of Washington

March 13, 1903

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by Joseph Daly against the Everett Pulp & Paper Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Lewis & Hardin and Sherwood & Mansfield, for appellant.

Brownell & Coleman, for respondent.

HADLEY J.

This suit was brought by appellant against respondent to recover damages for the alleged loss of services of a minor son of appellant, occasioned by injuries to the fingers of said minor, received while working in the paper mill of respondent at Everett. Respondent answered the complaint, putting in issue the material allegations thereof, and affirmatively alleged, among other things, that theretofore said minor commenced an action against respondent in the superior court of Snohomish county to recover for all damages resulting from the injuries described in the complaint in this cause; that such proceedings were had in said suit that a judgment was entered therein against respondent, by agreement, and with the approval and consent of appellant, for the sum of $750 which judgment was to the effect that the respondent, upon paying into the registry of the court the sum of $750, should be released from all obligation and liability whatsoever because of any accident or injury consequent from any accident suffered by said minor as set forth in the complaint; that thereafter respondent did pay into the registry of the court, pursuant to and in satisfaction of said judgment, the sum of $750, which amount was afterwards paid to appellant, as the guardian of said minor; that, by reason of the foregoing, appellant is estopped from recovering in this action. A trial was had before a jury. At the conclusion of the testimony, respondent challenged the sufficiency of the evidence, and moved the court to withdraw the case from the jury and enter judgment in favor of respondent. The challenge and motion were by the court granted. The plaintiff has appealed.

Many errors are assigned, but we do not find it necessary to discuss any except those which relate to the affirmative defense outlined above, since it is our view that the case must be determined upon the issue presented by that defense.

It is urged as error that the court sustained respondent's motion for leave to file an amended answer which introduced the above-mentioned defense. The motion was orally made, no affidavits were filed in support of it, and no notice of the same appears to have been given. Appellant contends that the granting of the motion was error, under the provisions of section 4953, 2 Ballinger's Ann. Codes & St., which provides, among other things, that the court may, upon affidavit showing good cause therefor, and after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding. The journal entry of the court shows that the motion was made upon the day the trial began. Appellant's counsel must have been present since the entry shows that the motion was granted after hearing argument, and an exception was allowed to the appellant. There also appears in the record a motion of appellant to strike portions of the amended answer, which motion was made the same day. It is therefore manifest that appellant had actual notice of the presentation of the motion. While the latter portion of the section of the statute cited contemplates both notice and affidavit, yet the first portion of the section seems to give the court discretion to allow amendments to correct mistakes without requiring either. There is nothing in this record to negative the idea that the trial court may have permitted this amendment on the theory that it was to correct a mistake. This court has heretofore construed the statute as intending much liberality in the matter of amendments in furtherance of justice. In Barnes v. Packwood, 10 Wash. 50, 38 P. 857, three answers had already been filed, and at the time of the trial the court permitted a fourth to be filed. This court observed at page 52, 10 Wash., and page 858, 38 Pac., as follows '* * * The court having such a large discretion, under our law and practice, in matters of amendments, we do not think we would be justified in reversing the case for this reason.' The record does not disclose any claim on the part of appellant that he was really injured by the amendment, and unprepared with testimony to meet any issue tendered thereby. No application for continuance of the trial on the ground of surprise of inability to produce testimony is shown. If such had been made to appear, no doubt, the trial court would have granted the amendment upon such terms as would have fully protected any rights shown to be jeopardized by permitting the amendment at that time. We think reversible error is not shown in permitting the amended answer to be filed.

It is assigned that the court erred in refusing to strike certain paragraphs of the affirmative defense heretofore mentioned. This is urged on the ground that the defense presented by that portion of the amended answer is irrelevant and immaterial. We think the averments of that portion of the answer are material, and, if true, constitute a defense to this action. The answer is to the effect that appellant had emancipated his minor son, so far as any claim for damages growing out of the alleged injuries was concerned, and had with his own consent, advice, and assistance, permitted the son to bring a former action in his own behalf for all damages occasioned by the injury. If the son, with the consent and assistance of the father, was permitted to collect all damages, including those occasioned by the reduced value of his services during minority, then it would seem to follow that the father waived his right to damages for reduced earning power during minority, and gave them to the son. Such is the effect of the answer. Its averments are to the effect that the father approved of the settlement that was made, and the judgment that was entered in the former cause, and that the money was paid to him as the legally appointed guardian of the son. Such participation in that suit and settlement on the part of the father, we think, should now estop him from asserting a claim of his own, in the absence of an express understanding between appellant and respondent...