Illinois Cent. R. Co. v. Houchins

• Decision Date: 26 April 1907
• Parties: ILLINOIS CENT. R. CO. v. HOUCHINS.
• Court: Kentucky Court of Appeals

101 S.W. 924

125 Ky. 483

ILLINOIS CENT. R. CO. v. HOUCHINS.

Court of Appeals of Kentucky.

April 26, 1907

Appeal from Circuit Court, Muhlenburg County.

"To be officially reported."

Action by J. E. Houchins against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 89 S.W. 530.

Trabue Doolan & Cox, Browder & Browder, R. Y. Thomas, Jr., and J. M Dickinson, for appellant.

B. F Proctor, G. H. Herdman, and Greene & Van Winkle, for appellee.

LASSING J.

This is the second appeal of this case. The former opinion in which the facts are set out in detail is found in 89 S.W. 530, 28 Ky. Law Rep. 499, 1 L. R. A. (N. S.) 375.

Upon a retrial plaintiff recovered a judgment for $6,500, and the defendant company seeks a reversal of this judgment primarily upon two grounds: First. That the trial court erred, to its prejudice, in refusing to permit an amended answer to be filed, in which, for the purpose of securing the closing argument, the defendant company admitted that the injuries complained of by the plaintiff, if any, were the direct and natural result of the gross negligence of the company, and further admitted that plaintiff had been damaged and offered to confess judgment in satisfaction of such damages in the sum of $300; and, for the further reason, that the trial court erred in permitting the witness Shegogg to testify to a conversation he had with the engineer, Robert Williams, about five minutes after the accident occurred, in which said Williams told the witness that the collision was caused by his failure to read his time card right. Appellant insists that had the trial court permitted the amended pleading to be filed it would have eliminated from the case every question save the extent of appellee's injury and the assessment of damages therefor; that the evidence brought out on the former trial showed conclusively that the accident was due to the gross negligence and carelessness of the employés of the appellant company; that, knowing that the evidence must be the same, the amendment was prepared and offered in good faith, and that it was a substantial error highly prejudicial to the rights of appellant for the court to refuse to permit it to be filed. Section 134 of the Civil Code of Practice provides that: "The court may, at any time, in furtherance of justice, on such terms as may be proper, cause or permit a pleading or proceeding to be amended," etc. Under this section of the Code the trial court would have been warranted in permitting the amended answer to be filed had he, exercising a sound discretion, been of the opinion that to permit same to be filed would have been in furtherance of justice. In the case of the Louisville &amp Nashville Railroad Company v. Ritter's Adm'r, 13 Ky. Law Rep. 44, it is said: "The defendant having made an issue which confessedly gave to plaintiff the concluding argument to the jury, and earnestly fought the issue before the jury upon several trials, the court did not abuse its discretion in refusing to allow the defendant to file an amended answer abandoning this issue for the mere purpose of getting the concluding argument to the jury." In the case before us appellant admits that the sole object, aim, and purpose had in offering to file the amended answer was to get the burden. On a former trial the pleadings had been completed, the issues made up, and, when so made, the burden was upon the plaintiff. The case had been tried out under the issues as thus presented, and we do not think that the trial court abused its discretion in refusing to permit the amendment to be filed. Appellant insists that upon the former trial the pleadings had been so drawn by it, under the rulings of this court as they were then understood, as to warrant the trial court in holding that it had the burden, and hence the right, to make the closing argument, and that, in offering to file the amended answer, it was endeavoring to conform to the rulings of this court as laid down in the case of the Southern Railroad Company in Kentucky v. Steele, 90 S.W. 548, 28 Ky. Law Rep. 764; that the trial court, upon being informed that the amendment sought to be filed to make the pleading conform to the requirements of the rule as laid down in the Steele Case, supra, should have permitted it to be filed. To this reasoning we cannot agree. It is never the duty of the trial court to permit an amendment to be filed, save when, in the exercise of a sound discretion, the ends of justice will be furthered thereby. The better practice would be to hold that after the pleadings have been made up it would not be in furtherance of justice to...