Davis v. Springer

• Decision Date: 19 March 1929
• Citation: 275 P. 600,128 Or. 582
• Parties: DAVIS v. SPRINGER.
• Court: Oregon Supreme Court

275 P. 600

128 Or. 582

DAVIS v. SPRINGER.

Supreme Court of Oregon

March 19, 1929

Department 1.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Dorothy Davis against H. A. Springer, doing business under the firm name and style of the Tri-State Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wendell K. Phillips, of Portland (Burnett Bros. and Chester A. Sheppard, all of Portland, on the brief), for appellant.

Paul R Harris, of Portland (Davis & Harris and Glenn Y. Wells, all of Portland, on the brief), for respondent.

RAND J.

Plaintiff a pedestrian, while crossing a public street intersection in the city of Portland, was knocked down and run over by defendant's truck, while it was being operated by a servant of defendant. She brought this action to recover damages for the injuries sustained, and from a judgment in her favor defendant has appealed.

The first assignment of error is that the court erred in granting plaintiff's application to amend her complaint while the cause was being tried. During the trial, plaintiff offered evidence tending to prove the amount she had earned per month prior to the accident by giving dancing lessons and musical instruction, and working for Meier & Frank Company as a saleswoman. This evidence was objected to as not within the issues, and before the court ruled thereon plaintiff moved the court for leave to amend the complaint by interlineation. The application was granted, and defendant then moved for a continuance on the ground of surprise. His motion was overruled, and an exception taken to both rulings.

Before amendment, one of the allegations of the complaint was that prior to the accident, "plaintiff was strong and capable of working and following classical dancing, and following her pleasures and pursuits of life, without mental or physical handicap, but since said accident, and by reason thereof, caused by the carelessness and negligence of defendant, this plaintiff has been unable to carry on her pursuits of happiness, or work, without great physical pain, and plaintiff's earning capacity has been and will be destroyed for a long period of time in the future, and by reason of the injuries sustained by plaintiff, as hereinafter alleged, plaintiff's earning capacity will be impaired for the remainder of her natural life, and her injuries are permanent." The amendment complained of was the insertion by plaintiff after the word "dancing," in the paragraph above quoted, of the words "and instructor and teacher of banjo and ukelele for profit, and earned $140 per month prior to said accident as an average wage and salary." The authority of the trial court to permit a pleading to be amended after the commencement of the trial and before it is finally submitted is conferred by section 102, Or. L. The effect and meaning of the statute have received the consideration of this court in numerous cases, and it would seem that the power of the court to permit amendments and the limitation upon such power are now thoroughly settled in this state by the former decisions of this court. Among the decisions which we think are controlling here are Baldock v. Atwood, 21 Or. 73, 26 P. 1058; Cook v. Croisan, 25 Or. 475, 36 P. 532; Davis v. Hannon, 30 Or. 192, 46 P. 785; Talbot v. Garretson, 31 Or. 256, 49 P. 978; and by the later decisions of this court where the doctrine announced in those cases has been followed.

It was held in the Baldock Case, that, while parties are in court, they should be permitted to shape their pleadings so as to present the real questions at issue, and to have the litigation determined with as little delay and expense as possible, and that they ought not to be turned out of court without a trial of the matters in litigation because of some defect in the pleading, not discovered until during the progress of the case, where, by an amendment, the defect could be supplied and the action or suit be brought to an early determination.

In the Cook Case it was held, in an opinion written by Mr. Chief Justice Lord, that the practice of allowing amendments liberally, so as to enable the parties while in court to have their differences settled and determined, has been uniformly approved and encouraged by the courts, where the proposed amendments did not change the controversy between the parties and could not take either by surprise, and that the granting or refusing of an application to amend is addressed to the discretion of the trial court, and, generally, is reviewable only for the purpose of determining whether there has been an abuse of such discretion, but that this power is not entirely discretionary, but is granted to advance justice, and should be exercised liberally in proper cases.

In the Davis Case it seems to have been held that the test of the right of a litigant to amend his pleadings was whether the proposed amendment substantially changed the cause of action or defense, and that, in the exercise of its discretion in granting or refusing an application to amend, the action of the court will not be reviewed on appeal, unless it affirmatively appears that there was a plain abuse of such discretion, to the manifest injury of some substantial right of the appellant.

In the Talbot Case it was held that, under section 102, Or. L., a new cause of action cannot be inserted by way of amendment on the trial, or a different cause of action be...