Dempster v. Oregon Short Line R. Co.
| Decision Date | 18 July 1908 |
| Citation | 96 P. 717,37 Mont. 335 |
| Parties | DEMPSTER v. OREGON SHORT LINE R. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by Charles W. Dempster against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
J. L Wines, for appellant.
H. L Maury and S. T. Hogevoll, for respondent.
Defendant is a corporation organized and existing under the laws of the state of Utah. It is the owner of a line of railroad extending from the city of Ogden in that state, to the city of Butte, Mont., and is and was at the time hereinafter mentioned engaged in the business of a common carrier of freight and passengers between these points. On August 18 1907, plaintiff was a passenger upon one of defendant's regular passenger trains on his way to Salt Lake City, Utah. At a point some miles below Dillon, in Montana, the train ran into an open switch, and, being thus deflected from the main track to a sidetrack, collided with a train of cars thereon. By the sudden shock of the collision, plaintiff was thrown violently forward over the seats in front of the one upon which he was sitting, and fell head first upon the floor of the car, with the result that his back was wrenched and injured. In addition to the allegations setting forth these facts, the complaint avers that the defendant negligently suffered the said switch to be open and thereby caused the collision; that the plaintiff was without fault on his part; that the plaintiff was compelled by reason of his injury to spend five days in a hospital at Salt Lake and a week thereafter under the care of a nurse at Soda Springs, Idaho; that he suffered great bodily pain, and that he still so suffers, and is advised and believes that this condition will continue for many years; that this injury is permanent, and that he has been damaged to the extent of $6,000. Judgment is demanded for this sum. The answer is simply a denial of all the material allegations contained in the complaint. As originally drawn, the complaint fixed the amount for which judgment was demanded at $2,000. During the trial and at the close of plaintiff's case the court, upon application of the plaintiff and over objection by the defendant, permitted an amendment changing this amount to $6,000. The plaintiff had verdict and judgment for $2,000. Defendant has appealed from the judgment and an order denying it a new trial.
Counsel for defendant contends that this court should direct a new trial for the reasons (1) that the trial court erred in permitting the amendment; and (2) that the evidence is insufficient to justify the verdict.
1. The objections urged against the allowance of the amendment at the time it was made were that it would be an abuse of discretion to permit an amendment at that stage of the trial, and would operate as a surprise to the defendant. In his brief counsel does not urge either of these objections. He now contends that it appeared from the evidence that the defendant is a Utah corporation, and that the plaintiff is a resident of Butte. Hence, if the action had originally been brought for $6,000, the defendant would have had the right under the federal statute to remove the cause for trial to the United States Circuit Court, on the ground of the diverse citizenship of the parties, and that the allowance of the amendment deprived it of this substantial right. The action of the court must be deemed prejudicial error, it is said; otherwise, since the removal of such a cause may be bad only at or before the time for appearance by the defendant, a plaintiff might purposely bring his action for an amount so small as to prevent a removal at that time, and then, after appearance by defendant, amend so as to demand any amount. The contention cannot be sustained. In the first place, whatever merit might have been attached to it if it had been made at the trial and at the time of the amendment, since the objection was not made in the lower court and a ruling had thereon, there is nothing before this court for review. The district court acquired jurisdiction of the action, and had jurisdiction of it for all purposes. In the second place, it appears that no prejudice resulted from the amendment. The verdict was for the amount originally claimed. Finally, in order to obtain a ruling upon the question whether defendant had been deprived of his right of removal by a trick of the plaintiff, resorted to to prevent a petition for removal, some showing must have been made to the trial court of this fact. In the absence of such a showing, the court would have been justified in acting upon the presumption that the plaintiff brought the action in good faith for the smaller amount, and asked for the amendment in order to make the statement in the complaint conform to the proof. For such purpose it was within the discretion of the court to permit an amendment, and error cannot be predicated upon its action unless abuse is shown. Wormall v. Reins, 1 Mont. 627; Palmer v. McMasters, 6 Mont. 169, 9 P. 898; Borden v. Lynch, 34 Mont. 503, 87 P. 609.
2. There is no controversy in the evidence...
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