Kelsey v. Chicago & N.W.R. Co.

• Decision Date: 01 May 1890
• Citation: 45 N.W. 204,1 S.D. 80
• Parties: Kelsey v. Chicago & N.W. Ry. Co.
• Court: South Dakota Supreme Court

45 N.W. 204

1 S.D. 80

Kelsey v. Chicago & N.W. Ry. Co.

Supreme Court of South Dakota

May 1, 1890

Syllabus by the Court.

1. When an amendment to a complaint is necessary, and the record shows that the amendment was allowed by the court, although the record does not disclose that it was actually made, and the trial of the cause is proceeded with without further objections, it is not a violent presumption to presume that the complaint was amended to show a good cause of action.

2. Under section 4938, Comp. Laws, it is the rule to allow amendments; to refuse is the exception. The right to amend is not an absolute, unconditional one, but is to be allowed in furtherance of justice, upon equitable terms, and must be one which will not change substantially the claim or defense.

3. Pleadings in justice court are not required to be in every particular formal, but must be such as to enable a person of common understanding to know what is intended. They may be oral or written. If oral, an entry of their substance must be made in the docket.

4. Verdicts are to have a reasonable intendment, and to receive a reasonable construction. A verdict is good if the title sufficiently identifies the cause in which it is rendered and the findings of the matter submitted in issue may be ascertained and clearly understood from the wording of it.

5. If a damaging fire is shown to have been propagated by sparks or fire from a locomotive engine of a passing railroad train of a chartered company, such proof raises a presumption of negligence upon the part of the company, so as to cast the burden of proof upon it of showing that the locomotive engine was properly constructed and managed at the time of the fire.

6. The allowing of dry grass or other combustible material to accumulate on or near the roadbed of a railroad company is evidence of negligence on the part of said company to be considered by the jury in an action of damage by fire.

Appeal from district court, Brookings county; JAMES SPENCER, Judge.

R. H Brown, for appellant. Mathews & Murphy, for respondent.

BENNETT J.

This action was brought in a justice's court to recover the value of 30 tons of hay destroyed by fire alleged to have been started on the right of way of the Chicago & Northwestern Railway on the 22d day of October, A. D. 1885 in Brookings county. Plaintiff alleges that the fire was caused by the negligence and carelessness of defendant company in permitting dry and combustible material to gather and remain upon its right of way until ignited by sparks or cinders from the locomotive of a passing freight train going west on said day, and that said fire communicated with the dry grass and stubble on lands adjoining the right of way of defendant, and was driven by a strong wind to the stacks of plaintiff which were destroyed. Upon the trial of said cause before the justice of the peace, judgment was rendered against the defendant for $85 and costs. From the judgment the defendant appealed to the district court; and, upon a trial of the cause in the district court, judgment was awarded in favor of plaintiff for $90 and costs. From this judgment an appeal is taken to this court.

The first assignment of error by appellant is that the court erred in admitting evidence when the complaint of plaintiff did not state facts sufficient to constitute a cause of action. In the trial below the defendant demurred to the complaint for the reason as stated above, which demurrer was sustained by the court; and plaintiff asked leave to amend his complaint by alleging the corporate capacity of the defendant, which was granted by the court. This point is stated in the bill of exceptions as follows: "The issues in this cause, on summons, complaint, and answer, came on for trial to a jury before the Honorable JAMES SPENCER, judge of said court. *** The plaintiff, by his counsel, opened his case to the jury. The plaintiff then, to maintain the issues on his behalf, called as witnesses Robert Stegner. *** Robert Stegner, being sworn, testified as follows: By Mr. Mathews. Question. Where do you reside? By Mr. Brown. (At this point attorney for defendant objects to evidence under the complaint, as not stating a cause of action. Objection sustained. Plaintiff's counsel moved to amend the complaint. Motion allowed; to which ruling of the court defendant, by counsel, then and there excepted. Testimony of witness Stegner was then proceeded with; Stegner answering the question above propounded by Mr. Mathews.)" The bill of exceptions also shows that the trial proceeded by the examination and cross-examination of witnesses, both by plaintiff and defendant. The above is all the record evidence as to the amendment of plaintiff's complaint after the demurrer was interposed and sustained by the court. It does not show that the amendment was ever made, or the terms imposed by the court complied with by the plaintiff. The record being silent, and in the absence of a showing to the contrary, we will presume that the court below exercised its discretion correctly, and, if an amendment was desirable or necessary, that it was properly made. A motion was made to amend, but in what particular is not shown. The motion was allowed, but the record does not say positively that the amendment was made. The trial proceeding without further objection, it is not a violent presumption that the complaint was amended to show a good cause of action. The modern rule and the generally prevailing principle to-day, is that all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties, and administering justice. Under the Code, the utmost liberality prevails upon the subject of amendments of pleadings. The power of a court to allow an amendment of a pleading on a trial is expressly conferred by section 4938, Comp. Laws, which is as follows: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." In applying the provision of a Code very similar to our own on amendments, the supreme court of Iowa, in Miller v. Perry, 38 Iowa, 301, says: "Under the statute, it is the rule to allow amendments to pleadings; to refuse is the exception. The right to amend is not an absoulte, unconditional one, but is to be allowed in furtherance of justice, under a sound discretion. Amendments, within the limits of the statute, should always be allowed when substantial justice will be thereby promoted; and they should not be refused so as to operate a denial of justice." No exact rule as to the limit of the right to amend can be stated. Courts have a considerable discretion in the matter. But to this general authority to allow amendments the Code fixes the following restrictions: (1) The proposed amendment must be in furtherance of justice; (2) the privilege of amendment must be allowed on equitable terms; and (3) if the proposed amendment consists in conforming the pleadings to the facts proved, the amendment must be one which will not change substantially the claim or defense. Section 4941, Comp. Laws, says: "The court shall, in every stage of action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." The defendant and appellant fails to show to this court wherein its substantial rights have been affected by any error or defect of the pleadings or proceeding, if any existed, and, having failed to do so, we must hold that the first assingment of error is not well taken.

It must also be borne in mind that the action was commenced in a justice's court, where it is the intent of the law that the practice is to be simplified, to the end that any citizen, with or without any legal attainments or experience may be enabled to bring his suit, and state his case, without formalities, in an intelligent manner, capable of being understood, without any technicalities surrounding the pleadings or trial of the cause. Pleadings in justice's court are not required to be in every particular formal, but must be such as to enable a person of common understanding to know what is intended. They may be oral or written. If oral, an entry of their substance must be made in the docket. Section 6058, Comp. Laws. If sufficient before a justice of the peace, it is also sufficient in the appellate court, because the statute does not require that new pleadings shall be filed on appeal when a trial is demanded de novo, but all pleadings may stand as they came from the justice. The law requires the case to be tried upon its merits, regardless of any and all irregularities or errors that may appear in the pleadings. In Clow v. Murphy, (Iowa,) 3 N.W. Rep. 723, Chief Justice BECK says: "It will be remembered that, upon appeals from justices of the peace, cases are trieddenovo upon their merits, and all errors, irregularities, and illegalities are to be disregarded. *** The intent of the statute is to secure justice by a trial of the appeal upon the very merits of the case, without regard to errors or irregularities. If the circuit court may have jurisdiction of the parties and subject-matter of the action, errors and insufficiency of pleading cannot stand in the way. The pleadings may be amended or the errors disregarded, in order to...