Gracz v. Anderson
| Decision Date | 19 June 1908 |
| Docket Number | 15,745 - (127) |
| Citation | 116 N.W. 1116,104 Minn. 476 |
| Parties | GEORGE GRACZ v. ANDREW P. ANDERSON |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $10,000 for personal injuries. The case was tried before John Day Smith, J., and a jury which rendered a verdict in favor of defendant. From an order denying plaintiff's motion for a new trial, he appealed. Affirmed.
Amendment of Complaint.
The refusal to permit plaintiff at the conclusion of the trial to amend his complaint by inserting therein additional grounds of negligence and to make it conform to the evidence in the case held not an abuse of discretion.
Cross-Examination.
Plaintiff during the trial of the action and on the cross-examination of defendant when on the stand as a witness, sought to bring out the fact that he carried indemnity insurance and the extent to which he was thereby protected from liability in case of an adverse verdict, and the court excluded the questions put to the witness for that purpose. Held, applying the rule that the extent to which a witness may be cross-examined for the purpose of testing his credibility is within the discretion of the trial court, not reversible error.
Cross-Examination.
The cross-examination of a witness upon collateral matters, where the only effect will be to prejudice unconsciously the minds of the jury, should not be permitted.
Requested Instructions.
Certain special requests for instructions to the jury held rightly rejected by the trial court for the reason that they were not, as required by section 4174, R.L. 1905, seasonably handed to the court.
Assignments of Error.
Certain assignments of error held to present no reversible error, and that the evidence sustains the verdict of the jury.
H. E Fryberger, for appellant.
Morton Barrows, for respondent.
Action to recover for personal injuries, in which defendant had a verdict, and plaintiff appealed from an order denying a new trial. The injuries complained of were received by plaintiff while in the employ of defendant at his stone quarry, and by reason of the slipping from their fastenings of certain grappling hooks which had been attached to a large stone to be raised and moved by means of a derrick. The hooks were attached to the sides of the stone, and by reason of the insufficiency of the holes prepared to hold them in place slipped therefrom as the stone was raised from the ground, causing the hooks to swing violently toward, and to strike and severely injure, plaintiff.
1. The complaint sets up fully the negligence upon which plaintiff relied for recovery, consisting in the main of alleged carelessness in the manner and method in which defendant caused and permitted the work in which plaintiff was engaged to be performed, the failure to instruct him of the dangers and risks incident thereto, the failure to employ sufficient help safely to do the work, and the failure to provide plaintiff a safe place in which to perform his duties, and in other respects pointed out in the pleading. It contained no allegations of negligence in respect to the failure to promulgate and establish rules for the conduct of, or the failure to instruct workmen in respect to the proper manner of doing, certain parts of the work, or for the failure of defendant to inspect, or cause to be inspected, this particular stone before raising it, for the purpose of determining whether the holes made therein for the hooks were sufficient for the purpose. But the absence of rules for the conduct of the work about the quarry, the failure to instruct workmen in respect to the depth and size of holes made for the hooks, and the failure to inspect the particular stone before attempting to raise it, were disclosed on the examination of some of the witnesses; and at the conclusion of the trial, and after both parties had rested, plaintiff moved the court for leave to amend his complaint by inserting therein allegations of negligence in these respects and to make the complaint conform to the proof. The motion was denied and plaintiff assigns the ruling as error. Subsequent to the denial of this motion the court, on defendant's motion, struck out the cross-examination of certain of defendant's witnesses, which, it is claimed, tended to show negligence along this line, and of this ruling plaintiff also complains.
We discover no reversible error in either of these rulings. Whether an application to amend a pleading to make it conform to facts proven on the trial should, or should not, be granted, rests ordinarily in the sound discretion of the trial court. Each party has the undoubted right to confine his adversary to the issues made by the pleadings, and unless they voluntarily depart therefrom and litigate issues not so presented, neither party can, as a matter of right, amend his pleadings by raising new questions. Where issues not made by the pleadings are litigated by consent, express or implied an amendment should be ordered as a matter of course, but when not voluntarily litigated, the matter rests in the discretion of the court. Dunnell, Pl. §§ 714, 715. In the case at bar the record shows no intentional or voluntary departure from the issues made by the pleadings. The evidence drawn out by defendant's counsel in reference to rules, inspection, and instructions as to the manner of doing the work was evidently for the sole purpose of developing the defense, proper under the answer, that plaintiff's injuries were the result of the negligence of a fellow servant, for which defendant would not be liable; and there was clearly no abuse of discretion on the part of the trial court in excluding the subject from the consideration of the jury, as a substantive ground of recovery by plaintiff. Byard v. Palace Clothing House Co., 85 Minn. 363, 88 N.W. 998; Pierce v. Brennan, 88 Minn. 50, 92 N.W. 507; Iverson v. Dubay, 39 Minn. 325, 40 N.W. 159. The proposed amendment changed and enlarged the basis of plaintiff's cause of action, and was properly disallowed. Minneapolis Stock-Yards & Packing Co. v. Cunningham, 59 Minn. 325, 61 N.W. 329; Byard v. Palace Clothing House...
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