Flaherty v. Butte Electric Ry. Co.

• Decision Date: 29 March 1911
• Citation: 115 P. 40,43 Mont. 141
• Parties: FLAHERTY v. BUTTE ELECTRIC RY. CO. et al.
• Court: Montana Supreme Court

115 P. 40

43 Mont. 141

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

Supreme Court of Montana

March 29, 1911

Appeal from District Court, Silver Bow County; J. M. Clements Judge.

Action by Wilfred H. Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded for a new trial, unless a remittitur is filed, in which case judgment is affirmed as modified, and the order denying a new trial is affirmed.

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

J. E. Healy, M. F. Canning, and Canning & Keating, for respondent.

HOLLOWAY J.

A statement of the facts of this case will be found in the opinion upon the former appeal. Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 P. 416. 135 Am. St. Rep. 630. Upon the return of the cause to the district court, plaintiff amended his complaint, and the issues being joined a trial was had, which resulted in a verdict and judgment in his favor for $25,000. Defendants have appealed from the judgment and from an order denying them a new trial.

The complaint as originally drawn charged negligence in the operation of the car which resulted in the injury, particularly in that Le Sage, the motorman at the time, failed to turn off the electric current, apply the brakes, and stop the car before striking the child. Upon the former appeal we held that the evidence failed to prove the specific act of negligence thus pleaded. The amendment made to the complaint consists in substituting for the allegation of the specific act of negligence in failing to apply the brakes, etc., an allegation that Le Sage failed to keep any vigilant or proper lookout, whereby he might have seen the child and avoided the injury. It is now insisted that the so-called amendment was in fact the substitution of a different cause of action.

There cannot be any question as to the general rule of law applicable in such cases. In Leggat v. Palmer, 39 Mont. 302, 102 P. 327, this court said: "Under the statute, to allow amendments is the rule; to deny them is the exception. The rule observed by this court has always been to allow them with great liberality, where they do not change the nature of the action, or mislead the adversary to his prejudice; its application going even to the extent of permitting them after verdict and judgment." The only difficulty arises in applying the rule to the facts of the particular case. "To constitute a cause of action for a tort, then, the plaintiff's right must have been infringed by the wrongful act of the defendant, with the result that plaintiff suffered damages." Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 P. 960. It is alleged in the original and also in the amended complaints that the negligence of the defendants in operating the car caused the injury. May the plaintiff, then, substitute as the charging part of his complaint one specific act of negligence for another, without introducing a different cause of action?

In Kerr v. Grand Forks, 15 N.D. 294, 107 N.W. 197, the original complaint charged that the injury resulted from negligence of the city in permitting a sidewalk to be constructed in a dangerous manner. The amendment charged that the negligence consisted in permitting the sidewalk to remain in a dangerous condition after the city had notice.

It was held that this amendment was properly allowed.

In Peery v. Quincy, O. & K. C. R. Co., 122 Mo.App. 177, 99 S.W. 14, the original complaint charged that the negligence consisted in failing to keep a fence in repair. The amendment charged negligence in maintaining a defective gate. The allowance of this amendment was held proper.

In Chapman v. Nobleboro, 76 Me. 427, the pleading is not set forth, but in disposing of the objection to the amendment the court said: "The first of the amendments is, not a change in, but an addition to, the description of the alleged defect in the way, and the second relates to the manner in which the accident happened, leaving the accident itself and the result of it the same. There is therefore no change in the cause of action, either in the alleged defect or the result of it, and the allowance of the amendments was within the discretion of the presiding justice."

In Davis v. Hill, 41 N.H. 329, the original declaration charged negligence in permitting a roadway to be uneven and incumbered with snow and ice, by reason whereof the injury resulted. The amendment charged negligence in failing to maintain a railing or barrier along the road, by reason of which the injury resulted. It was held that this amendment was properly allowed.

In Montgomery Traction Co. v. Fitzpatrick, 149 Ala. 511, 43 So. 136, 9 L. R. A. (N. S.) 851, the original complaint charged that plaintiff was wrongfully ejected from a street car on the Court Street line by the conductor of the car. The amendment charged that the conductor on the Electric Park line negligently tore and mutilated plaintiff's transfer ticket, by reason whereof he was ejected by the conductor of the Court Street line. It was held that this amendment was proper.

In Salmon v. City Electric Ry. Co., 124 Ga. 1056, 53 S.E. 575, the original complaint charged negligence on the part of the railway company in placing certain poles too near the track. The amendment offered charged negligence on the part of the conductor in failing to warn the plaintiff of the proximity of the poles to the track. It was held error to refuse the amendment.

In Smith v. Bogenschultz, 19 S.W. 667, 20 S.W. 390, 14 Ky. Law Rep. 305, the original complaint charged that plaintiff's injury was caused by the jostling of a ladle containing molten iron, occasioned by the narrowness of the passageway through which the ladle had to be carried. The amendment charged that the injury resulted from the negligence of defendant in furnishing a defective ladle. It was held error to refuse the amendment.

In City of Evanston v. Richards, 224 Ill. 444, 79 N.E. 673, the original declaration pleaded negligence on the part of the city in permitting certain boards in a sidewalk to become loose, whereby plaintiff tripped and fell. The amendment charged negligence in permitting the sidewalk to remain in an unsafe condition, by reason whereof plaintiff stepped upon and broke through a defective board, thereby sustaining the injury. In was held proper to allow the amendment, and in the course of the opinion the court said: "In the case at bar the act or wrong charged was the disregard by the appellant of its duty to keep its sidewalk in safe repair, and in permitting it to be and remain in bad and unsafe repair and condition. In the original declaration the pleader stated the manner in which the condition complained of resulted in the injury to appellee. Upon the trial the proof tended to show the condition complained of was as alleged in the declaration, but that the manner of appellee's injury was not as alleged, but in the manner stated in the amendment. The act or wrong of appellant which resulted in the injury was the same in the original declaration as charged by the amended declaration; the mode or manner in which it resulted in the injury was stated differently."

The theory of all these cases is that, so long as the plaintiff adheres to the injury originally declared upon, he may amend his pleading by alleging that the injury was caused in a different manner, without infringing the general rule against introducing a different cause of action. 1 Ency. Pl. & Pr. 564.

In More v. Burger, 15 N.D. 345, 107 N.W. 200, it is well said: "The test generally adopted to determine whether an amendment is permissible is whether a recovery upon the cause of action set up by the amendment would be a bar to a suit upon the other." The same injury is described in the original and in the amended complaint in this instance, and relief for that injury is sought in each pleading. The measure of damages is the same in each instance, and that a judgment recovered upon either pleading would bar recovery upon the other admits of no doubt. We approve the action of the district court in allowing the amendment, as well within the rule heretofore announced by this court.

2. It is insisted...