Fulsom-Morris Coal & Min. Co. v. Mitchell
| Decision Date | 11 June 1913 |
| Parties | FULSOM-MORRIS COAL & MINING CO. v. MITCHELL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is not error for the trial court to permit plaintiff, before judgment, to amend his petition to conform to the facts proved, when such amendment does not substantially change the cause of action. The allowance of such amendments rests in the sound discretion of the trial court, and its action in this regard will not be disturbed on appeal, unless it affirmatively appear that its exercise has operated to the prejudice of the rights of the complaining party.
It is not error to refuse to give a peremptory instruction, where the testimony upon a material fact in issue is conflicting.
It is not error to refuse an instruction which states the law of the case correctly, where the court has in its charge covered the point presented by the instruction refused.
Courts are not required to give instructions which necessitate qualification or modification. If not good as requested, it is not error to refuse them.
The failure of a party to introduce a competent witness, who is equally accessible to both the parties litigant, and equally under the legal control of either party, raises no unfavorable inference, and is not a circumstance to be considered against him; and a charge which instructs the jury to the contrary is properly refused.
The testimony of a physician or surgeon concerning any knowledge obtained by him from a physical examination of a patient may be required by the opposite party, where the patient offers himself as a witness and testifies upon the same subject.
Commissioners' Opinion, Division No. 1. Error from District Court, Coal County; A. T. West, Judge.
Action by Jesse N. Mitchell against the Fulsom-Morris Coal & Mining Company. Judgment for plaintiff, and defendant brings error. Affirmed.
J. G Ralls, of Atoka, and W. B. Johnson, of Ardmore, for plaintiff in error.
Cutler & McInnis and George Trice, all of Coalgate, for defendant in error.
It is first urged that the court erred in permitting the plaintiff leave to amend his petition after the testimony for both plaintiff and defendant had been concluded, and after the court had charged the jury. In making the request counsel stated: "The plaintiff asked leave to amend his petition so as to allege that the crossbar complained of was set below its proper position, instead of bent or sagged below its proper position, in order that the pleadings may conform to the proof." The defendant thereupon objected to the amendment being allowed, because the evidence in the case had closed, the court had charged the jury, all the witnesses had been discharged, and that the amendment proposed changed the issues in regard to the crossbar. The original petition charged that the injuries sustained were caused by the plaintiff being struck by a crossbar, which was bent or sagged below its proper position a distance of from 4 to 6 inches underneath the top of the lift. The amendment charged that the crossbar was set below its proper position. Did the amendment change the cause of action? In such cases, so long as the plaintiff adheres to the injury originally declared upon, a change in the manner of causing the injury is not 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. Lookabaugh v. Bowmaker, 21 Okl. 489, 96 P. 651; City of Shawnee v. Slankard, 29 Okl. 133 116 P. 803. Applying this rule to the present case, we find that in both the original petition and amendment thereto the action is for damages for personal injuries resulting from the negligent failure of the defendant to furnish the plaintiff a safe place in which to work, and a failure to warn plaintiff, who was inexperienced in the particular work in which he was at the time engaged, of the dangers of the place. In no material respect did the amendment amount to a change in the allegation as to how the injury occurred. The low bar, a view of which was hidden by the nearby air curtain, was the cause of the injury, and it was immaterial what caused it to be low, whether by being bent or sagged, or by reason of being set below its proper position. The only change was as to how the bar became dangerously low. It is expressly provided by statute (Comp. Laws 1909, § 5679) that amendments may be allowed before or after judgment by inserting other allegations material to the case, or to conform the pleadings to the facts proved, when such amendment does not change substantially the plaintiff's claim. Under this statute amendments allowed to pleadings resting in the sound discretion of the trial court, will not be disturbed on appeal, where it is not affirmatively made to appear that the exercise of this discretion has been abused to the prejudice of the complaining party (Kuchler et al. v. Weaver, 23 Okl. 420, 100 P. 915, 18 Ann. Cas 462; Alcorn et al. v. Dennis, 25 Okl. 135, 105 P. 1012; Merchants' & Planters' Ins. Co. v. Crane, 128 P. 260); while a further statute (Comp. Laws 1909, § 5682) provides that, where an amended pleading is filed and the court shall be satisfied by affidavit or otherwise that the adverse party cannot be ready for trial in consequence thereof, a continuance, as provided for in said section, may be granted. We may further add that, where an amended pleading is permitted to be filed after the close of the testimony, and a new issue of fact is thereby presented, which the adverse party is not prepared to meet, a reasonable opportunity should be afforded counsel to present countervailing testimony. The reason therefor is patent. But were the defendant's rights in any wise prejudiced in the case at bar by the denial of his request to have the case continued at the cost of the plaintiff? The witness Duffy, manager of defendant company, had on two different days during the progress of the trial testified to his measurement of the height above the rail of the offending bar. Petrone, who put in the timber at the place of the injury, testified fully concerning the height of the bars. His testimony as to the construction of the lift at the place in question, and particularly as to the bars and curtain, covers several typewritten pages of the record, and is to the effect that the bar which caused the accident was four or five inches lower than other bars, and that it and three or four other such bars were subsequently taken out on account of their being too low. Orr, the pit boss, likewise testified, giving his opinion of the height of the bar above the track underneath. So it appears that the exact question tendered by the amendment was fully gone into in the examination of the defendant's own witnesses. The amendment was made to conform to the proof, as stated by counsel at the time. There was no substantial change in the petition, and the change in fact made in no wise prejudicially affected the defendant. Chandler v. Parker, 70 P. 368 [1]; Ellen v. Lewinson, 88 Cal. 253, 26 P. 109; Omaha v. Crane, 15 Neb. 657, 20 N.W. 101.
Defendant's requested instruction No. 4 was properly refused. To have so instructed the jury would have been the equivalent of directing a verdict for the defendant as to the issue of negligence in either the construction or maintenance of the bar. The charge of negligence in this particular was sufficiently shown by the evidence. Likewise requested instruction No. 5 was properly refused. It is fundamental that, where the testimony is conflicting upon a material issue of fact, the question presented is for the jury.
Assignments of error Nos. 6, 7, 8, 9, 10, may properly be considered together. All deal with the refusal to instruct the jury as requested by the defendant. It is a very general rule that it is not error for the trial court to refuse to give a requested instruction upon a proposition, when the same question is...
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