McGuire v. Wilson

• Decision Date: 05 July 1916
• Docket Number: No. 14395.,14395.
• Citation: 187 S.W. 612
• Parties: McGUIRE v. WILSON, Mayor, et al.
• Court: Missouri Court of Appeals

187 S.W. 612

McGUIRE v. WILSON, Mayor, et al.

No. 14395.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

"Not to be officially published."

Suit by F. A. McGuire against R. K. Wilson, Mayor, and others. From a decree for complainant, respondents appeal. Affirmed.

Wilson Cramer and Albert M. Spradling, both of Jackson, for appellants. Edw. D. Hays, of Cape Girardeau, for respondent.

NORTONI, J.

This is a suit in equity for injunctive relief. The finding and decree were for plaintiff, and defendants prosecute the appeal.

Defendants are the mayor, the several members of the board of aldermen, and the street commissioner of the city of Jackson. Jackson is a fourth class city organized and existing under the general statutes. The controversy arises over the proposed change of grade and certain improvements to be made in a portion of First South street of the city. Plaintiff owns a lot abutting on First South street of the city and owns, too, five shade trees along the curb of the street. The city passed an ordinance No. 363 with a view of changing the grade of the street and another Ordinance No. 371 providing for the assessment of benefits against the adjacent property and the letting of a contract to carry into effect Ordinance No. 363. On the commencement of the work under these ordinances, plaintiff instituted this suit in equity to restrain the city authorities from destroying his shade trees along the curb and otherwise injuring his property.

The bill proceeds, generally speaking, in the view that the city authorities had recognized a false line and were about to make the improvements accordingly, to plaintiff's disadvantage, but the bill, as originally filed, charged, too, that defendants were proceeding wrongfully and without authority of law in the premises. The case came on for trial, and after all of the evidence was introduced and the cause taken under advisement by the court, the submission was set aside and plaintiff was permitted by the court to amend his bill by inserting therein averments to the effect that Ordinance No. 363 is void because it is unreasonable and meaningless and provides for impossible elevations at its intersection with cross streets; also that ordinance No. 371 is void because it does not define a grade as described by any valid ordinance and, furthermore, because it provides for a method of assessing benefits and damages repugnant to the laws of the state. Defendants objected and excepted to the amendment thus permitted, but filed no motion thereafter to strike it out, nor did they ask leave to plead further or introduce other or additional evidence touching the matter. The court, after having considered the case for a considerable time, awarded the injunction in the view that the ordinances are void as specified in the bill.

It is argued that the court erred in permitting the amendment of the bill for the reason, it is said, it constituted a departure, in that it added a new cause of action; but we are not so persuaded. The rule touching the matter of allowing amendments in the interests of justice is much relaxed from that which obtained in early days, and this, we believe, is in keeping with the spirit of the Code. The statute (section 1848, R. S. 1909) provides:

"The court may at any time before a final judgment, in furtherance of justice, * * * amend any * * * pleading * * * 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."

Here the evidence was all in; the ordinances were before the court, and the matter of their validity open to view. Indeed, though the bill originally proceeded in the main on the theory that the city authorities were commencing the improvements according to a false line so as to entail undue damage upon plaintiff, it charged as well, in its twentieth paragraph, in general terms, that the action so being taken was also wrongful and without authority at law. By the amendment, plaintiff was permitted merely to insert immediately after this paragraph 21 of the bill, which specifies more particularly why such action was wrongful and without authority of law, in that it avers the two ordinances are void, and sets forth in what respect they are deficient. Amendments are allowed in circumstances such as those involved here when they do not change substantially the claim or defense, and the better authorities go to the effect that they will be permitted as long as the general identity of the original grievance affording the ground of complaint is maintained and adhered to. In other words, as long as the gist of the action remains the same in the proposed amendment, although the alleged incidents are different, it is regarded as the same cause of action and not the substitution of another. But the proposed amendment, it is said, must not only relate to the same transaction or grievance complained of, but should adhere as well to the original injury declared upon, sufficient at least to maintain, in a general way, the identity of the cause of action first stated, so that the character of the proof will remain about the same. See Ingwerson v. Chicago & A. R. Co., 150 Mo. App. 374, 130 S. W. 411. Touching this, the Supreme Court says, quoting from the Vermont court:

"As long as the plaintiff adheres to the contract or injury originally declared upon, an alternation of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action."

Then the court continues:

"If the amendment is merely the same matter more fully or differently laid to meet the possible scope of the testimony it is not a change of the cause of action."

See Rippee v. Kansas City, Ft. S. & M. Ry. Co., 154 Mo. 358, 364, 365, 55 S. W. 438. Here ...