Palmer v. Schulz

• Court: Wisconsin Supreme Court
• Writing for the Court: BARNES
• Citation: Palmer v. Schulz, 138 Wis. 455, 120 N.W. 348 (Wis. 1909)
• Decision Date: 09 March 1909
• Parties: PALMER v. SCHULZ.

138 Wis. 455

120 N.W. 348

PALMER

v.SCHULZ.

Supreme Court of Wisconsin.

March 9, 1909.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Mary Palmer, administratrix of Thomas Palmer, deceased, against Erdmann Schulz. Judgment for plaintiff. Defendant appeals. Affirmed.

This action is brought by the plaintiff, as administratrix of the estate of Thomas Palmer, deceased, to recover damages for the death of the decedent, who was her son. The defendant entered into a contract with the city of Milwaukee to construct sidewalks on the Sixteenth street viaduct in said city, agreeing in such contract to maintain suitable barriers, and to provide lights and watchmen, and to take such other precautions as might be necessary to protect life and property. The negligence relied upon was the failure of the defendant to cause proper barriers to be placed adjacent to the open space caused by the removal of about 1,000 feet of the old sidewalk. The trial resulted in a verdict and judgment for plaintiff, from which judgment this appeal is taken.

The defendant assigns the following errors: (1) Receiving the testimony of the assistant coroner of Milwaukee county, to the effect that in his opinion the deceased had been dead for four or five hours when he saw the body. (2) The refusal of the court to grant a nonsuit. (3) The refusal of the court to permit the defendant to amend his answer. (4) The refusal of the court to direct a verdict for the defendant. (5) The refusal of the court to insert divers questions in the special verdict. (6) Erroneous instructions to the jury. (7) The action of the court in answering the first question in the special verdict. (8) The submission of improper questions in the special verdict.Doe & Ballhorn, for appellant.

Ryan, Ogden & Bottum, for respondent.

BARNES, J. (after stating the facts as above).

The complaint in this action contained the following allegation: “And said Thomas Palmer, deceased, on the night of the 19th, or early morning of the 20th of May, 1904, and while it was still dark, walked from the east side of said viaduct across the roadway for horses with the intention of going upon the sidewalk upon the west side of said viaduct, and walked into the space or hole left where said sidewalk had been torn up and fell to the ground some 40 feet below and was killed.” The answer denies that defendant neglected to cause proper barriers to be erected, denies that he failed to take suitable measures for the protection of persons walking upon said viaduct, and “denies expressly that the death of said plaintiff's decedent was caused by any neglect on his part to provide suitable guards for the protection of life and property, but alleges, on the contrary, that the accident which caused the plaintiff's decedent's death was occasioned by reason of the negligence or carelessness of plaintiff's decedent directly contributing thereto, and that defendant was in no wise responsible through any negligence or carelessness on his part for the death of plaintiff's decedent.” The answer further alleges: “That the accident received by him (the decedent) and which caused his death was due to the carelessness or negligence of said plaintiff's decedent himself contributing directly thereto.” That these denials and averments of the answer do not put in issue the allegation of the complaint as to the time and manner in which the plaintiff's decedent met his death seems too clear to admit of serious controversy. The contributory negligence of the decedent, and the lack of negligence on the part of the defendant, are well pleaded; but it is not denied that while it was dark on the night of May 19th, or the early morning of May 20th, the deceased walked from the east side of the viaduct across the roadway for horses, with the intention of going upon the sidewalk on the west side of the viaduct, and that in so doing he walked into a space or hole left by the removal of the old sidewalk and fell to the ground a distance of 40 feet and was killed.

One of the errors principally relied upon was the refusal of the court to permit the defendant to so amend his answer as to put in issue the averments of the complaint as to the time and manner in which Thomas Palmer met his death. If the ruling of the trial court in this behalf was not an abuse of sound judicial discretion, then the errors assigned because of the admission of the testimony of the witness Grundmann, and because of the failure of the court to either grant a nonsuit or direct a verdict, are untenable. The affidavits filed in support of the motion to amend show that the averments in question were not denied because of the inadvertence of the counsel who prepared the answer, and that the defendant was not responsible for such omission. The administration of the law requires that a policy of liberality be pursued in the allowance of amendments that are in furtherance of justice. This is particularly true of permitting amendments to answers. Ordinarily the plaintiff may discontinue his action and begin over, if the right of amendment is denied, while the defendant is without remedy if leave to amend is refused. Thorn v. Smith, 71 Wis. 18, 24, 36 N. W. 707;Carmichael v. Argard, 52 Wis. 607, 610, 9 N. W. 470. And ordinarily, where material matter is omitted from an answer by mistake or inadvertence, an amendment should be allowed. Gregory v. Hart, 7 Wis. 532;Vilas v. Mason, 25 Wis. 310. And it may be an abuse of discretion to refuse to permit a defendant to amend his answer by striking therefrom an admission improvidently made. Hepp v. Huefner, 61 Wis. 148, 20 N. W. 923. Numerous other cases might be cited to show that amendments that are in furtherance of justice should be liberally dealt with by trial courts. Ill. Steel Co. v. Budzisz, 106 Wis. 499, 503, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54;Smith v. Dragert, 65 Wis. 507, 27 N. W. 317;Gates v. Paul, 117 Wis. 170, 182, 94 N. W. 55.

It is not contended by the respondent that, if the amendment sought was in furtherance of justice, it might not have been allowed by the trial court under section 2830, St. 1898; but it is argued that under the facts presented to the court in this case it was not an abuse of discretion to refuse leave to amend. The affidavits filed in opposition to the motion for leave to amend, in substance, showed: That prior to the time the answer was served the plaintiff had found a witness who could and would testify to the manner in which decedent met his death as averred in the complaint; that the answer was served in October, 1904; that the action had been noticed for trial and was upon the point of being tried several times after issue was joined and before January, 1908, when the motion to amend was made on the trial after plaintiff had rested her case; that plaintiff relied upon the fact that the averments of the complaint as to the time and manner in which Palmer met his death were not put in issue by the answer; that the witness first procured to prove such facts was killed in a railroad accident in October, 1906; and that plaintiff was unable to procure any witness to prove the necessary facts if the amendment were allowed, although she might have done so if there had been a timely joinder of issue on the fact involving the manner in which decedent came to his death.

The accident apparently happened at a time and place where the witnesses to how it occurred would not be numerous, if there were any such. It was not impossible that such evidence might be found even after the death of the witness relied on; but, after the lapse of nearly 3 1/2 years after issue had been joined, the difficulty of procuring such testimony, if any existed, might well be so great as to amount to an impossibility, and it is difficult for this court to say that a meritorious cause of action might not be defeated if the amendment were allowed. In this case it might be a great hardship to the plaintiff after the lapse of so long a time to compel her to procure testimony to prove a fact that had been admitted. She was entitled to rely on such admission, and it would not be just that she should lose her cause of action because at a late date she was obliged to secure evidence that she might be unable to discover even though it existed. It does not appear that she was responsible for the delays in bringing the action to trial. Under the facts presented to the trial court, it might well have concluded that the allowance of the amendment would not be in furtherance of justice as required by section 2830, St. 1898, and this court at least cannot say that the trial judge committed an abuse of discretion. The following cases amply sustain this view of the law: St. Clara's Female Academy v. Ins. Co., 101 Wis. 464, 466, 77 N. W. 893;Ill. Trust & Savings Bank v. Alex Stewart L. Co., 119 Wis. 54, 94 N. W. 777;Ballston Spa Bank v. Marine Bank et al., 16 Wis. 120, 135;Longwell v. Mierow, 130 Wis. 208, 109 N. W. 943;Phœnix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669, 10 N. W. 151.

The motions for a nonsuit and for a directed verdict being based on the assumption that there was no evidence showing, or tending to show, how Palmer met his death, and that the manner in which he lost his life was an issuable fact in the case, or the defendant should have been permitted to make...