Miller v. W. Jersey & S. R. Co.

• Decision Date: 22 June 1908
• Citation: 70 A. 175,76 N.J.L. 282
• Parties: MILLER v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

70 A. 175

76 N.J.L. 282

MILLER

v. WEST JERSEY & S. R. CO.

Supreme Court of New Jersey.

June 22, 1908.

(Syllabus by the Court.)

Motion to vacate an order permitting amendment of declaration.

For former opinion, see 71 N. J. Law, 363, 59 Atl. 13.

Argued February term, 1908, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Gaskill & Gaskill, for the motion.

John W. Wescott, opposed.

SWAYZE, J. After the decision of this court reported in 71 N. J. Law, 363, 59 Atl. 13, the plaintiff obtained from a justice of the court an order allowing him to amend his declaration so as to count upon negligence on the part of the defendant in failing to protect the plaintiff, a passenger, from the conduct of employes of another railroad who were using trucks upon the same station platform. The original declaration counted upon negligence of defendant's servants in using the freight trucks. The present motion is to vacate the order allowing the amendment.

The authority for the amendment is to be found in section 126 of the practice act (P. L. 1903, p. 572), which requires that all such amendments as may be necessary for the purpose of determining in the existing action the real question in controversy between the parties shall be made. This section was originally section 40 of the act to simplify pleadings and practice in courts of law. P. L. 1855, p. 301. Soon after its passage the question arose whether the real question in controversy was the question put at issue by the pleadings, or the question which the parties hoped and intended to try in the cause. Hoboken v. Gear, 27 N. J. Law, 265. In the course of an interesting opinion, Chief Justice Green referred to Wilkin v. Reed, 15 C. B. 192, in which, under a somewhat similar statute, the English court held that the amendment should not be permitted because, in fact, the question in controversy appeared from the evidence and opening of counsel to be the question which was at issue upon the pleadings, and the effort to amend was therefore in fact an at tempt to try another cause of action than that which the parties hoped and intended to try. Chief Justice Green, in commeuting upon that case, said: "What the real question in controversy between the parties was is here ascertained, not from the pleadings alone, but also from the evidence and from the opening of the plaintiff's counsel, and the power of amendment is held to extend to the introduction of matters which the parties hoped and intended to try in the cause, and not to be limited to matters within the issue upon the record. This I conceive to be the sound interpretation of the statute." 27 N. J. Law, 273. Under this ruling what is the real question in controversy becomes a question of fact, and under Key v. Pauls 61 N. J. Law, 133, 38 Atl. 823, we ought not to review the action of the justice who made the order.

We have, however, at his request considered the question, and are of the opinion that his action was correct. The opinion of this court upon the rule to show cause demonstrates that the question which the parties sought to try—the real question in controversy which they hoped and intended to try—was that sought to be presented by the amended declaration. The decision did not turn upon the question of pleading, but upon the failure of the plaintiff to establish a case under the evidence. The amendment which was permitted merely made the declaration conform to the case attempted to be made by the proofs on the former trial. Such an amendment is well within the precedents in this state.

In Hoboken v. Gear the plaintiff declared in indebitatus assumpsit for the value of services which he had rendered. It turned out that he had been paid for all services actually rendered, and was really seeking to recover unpaid salary for the balance of the term for which he was employed. The amendment was permitted.

In Farrier v. Schroeder, 40 N. J. Law, 601, an amendment was permitted after trial, charging the plaintiff, and this met with the approval of the Court of Errors and Appeals.

In Guild v. Parker, Receiver, 43 N. J. Law, 430, suit was...