Flaherty v. Butte Elec. Ry. Co.

• Decision Date: 15 October 1910
• Parties: FLAHERTY v. BUTTE ELECTRIC RY. CO. et al.
• Court: Montana Supreme Court

42 Mont. 89

FLAHERTY
v.
BUTTE ELECTRIC RY. CO. et al.

Supreme Court of Montana.

Oct. 15, 1910.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Richard M. Flaherty against the Butte Electric Railway Company and another. From an order granting plaintiff's motion for a new trial after verdict for him, defendants appeal. Affirmed.

W. M. Bickford, Geo. F. Shelton, Peter Breen, and Chas. A. Ruggles, for appellants.

HOLLOWAY, J.

The facts surrounding this case are set forth fully in Flaherty v. Butte Electric Ry. Co. et al., 40 Mont. 454, 107 Pac. 416, which was an action by the minor, by his guardian, to recover damages sustained by the child. The present action is brought by the father of the same child to recover damages for the loss of the child's services from the date of the injury until the minor reached his majority, for costs of medical attention, etc. The jury returned a verdict in favor of plaintiff for $100, and he, being dissatisfied, moved for a new trial. The motion was granted, and the defendants have appealed from the order.

1. The complaint in this action, so far as it charges negligence, is substantially the same as the complaint in the Flaherty Case cited above, and the evidence touching the cause of the injury is the same in the two cases. In Flaherty v. Butte Electric Co., cited above, we held that there was such a variance between the allegations of the complaint and the proof as amounted to a failure of proof. We are now asked to say that the trial court should not have granted a new trial in this instance, because, it is argued, a new trial must result in a verdict against the plaintiff. But this argument ignores altogether the right of plaintiff to amend his complaint, and a decision by this court in conformity with appellants' view would preclude any amendment at all. Whether plaintiff can amend his complaint to meet his proof is not before us now, and cannot arise until an amendment is offered; and therefore we decline to hold on this appeal that our former decision is conclusive against the plaintiff's right to recover under any view of the case.

2. One ground of plaintiff's motion for a new trial is insufficiency of the evidence to justify the verdict. We are confronted now with the question: May a plaintiff who has recovered a verdict in his favor in a sum less than he deems himself entitled to under the evidence ask for a new trial on the ground of insufficiency of the evidence to sustain the verdict...