Delay v. Gates

• Decision Date: 29 August 1893
• Citation: 27 A. 193,65 Vt. 591
• Parties: NELLIE C. DALEY v. MAE E. GATES
• Court: Vermont Supreme Court

27 A. 193

65 Vt. 591

NELLIE C. DALEY v. MAE E. GATES

Supreme Court of Vermont

August 29, 1893

GENERAL TERM, 1893

Action on the case. At the term to which the writ was returnable the plaintiff filed a new count, which the defendant moved to dismiss for that it contained a new cause of action. Heard upon this motion at the September term, 1892, Ross, Ch. J presiding. The court held, as a matter of law, that the cause of action was the same and overruled the motion. The defendant excepts. The case appears in the opinion.

Affirmed and remanded.

W.B.C Stickney for the defendant.

Before TAFT, ROWELL, MUNSON AND START, JJ. Munson, J., dissents.

OPINION

ROWELL

The original declaration charges that the defendant enticed away plaintiff's husband, per quod consortium amisit. The new count charges criminal conversation with him, with the same per quod.

An amendment cannot be allowed that introduces a new cause of action. But as long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony. Cassell v. Cooke, 8 S. & R. 268 (11 Am. Dec. 610); Stewart v. Kelly, 16 Pa. 160 (55 Am. Dec. 487); Maxwell v. Harrison, 8 Ga. 61 (52 Am. Dec. 385); Stevenson v. Mudgett, 10 N.H. 338 (34 Am. Dec. 155 and note).

This rule is variously illustrated by the cases. Thus, in The Executors of the Duke of Marlborough v. Widmore, 2 Strange 890, the plaintiffs declared as executors on a promise to the testator, but were allowed to amend by declaring on the promise as made to themselves. So in Ten Eyck v. Delaware & Raritan Canal Co., 19 N.J.L. 5, plaintiff was allowed to amend by declaring for another injury occasioned by the same wrongful act originally complained of. In an action for goods sold and delivered you may amend by adding a count for not accepting the goods. Mixer v. Howarth, 38 Mass. 205, 21 Pick. 205. So in covenant, you may amend by assigning new breaches of the same covenant. Stewart v. Kelley, cited above. You may also amend by declaring on another covenant in the same instrument, if both covenants and the breach thereof relate to the same thing. Boyd v. Bartlett, 36 Vt. 9; Tillotson v. Prichard, 60 Vt. 94, 14 A. 302. A declaration on a warranty can be amended by showing that the warranty covered things not originally declared for. Church v. Syracuse Coal and Salt Co., 32 Conn. 372.

If an action of this kind can be maintained by a wife, concerning which we are not called upon to express an opinion, the cause of action is the wrongful deprivation of the plaintiff of that to which she is entitled by virtue of the marital relation, namely, the consortium, or the conjugal society, affection, aid and assistance of her husband. Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17; Rinehart v. Bills, 82 Mo. 534 (52 Am. Rep. 385); Foot v. Card, 58 Conn. 1 (18 Am. St. Rep. 258, 18 A 1027); Westlake v. Westlake, 34 Ohio St. 621 (32 Am. Rep. 397); note to Shaddock v. Clifton, 94 Am. Dec. 593; Bigelow's Lead. Cas. on Torts, 337; Cooley,...