Pratt v. Montcalm Circuit Judge

• Citation: 63 N.W. 506,105 Mich. 499
• Court: Supreme Court of Michigan
• Decision Date: 28 May 1895
• Parties: PRATT v. MONTCALM CIRCUIT JUDGE.

63 N.W. 506

105 Mich. 499

PRATT v. MONTCALM CIRCUIT JUDGE.

Supreme Court of Michigan

May 28, 1895

Petition by Edwin F. Pratt, for a writ of mandamus, directed to the Montcalm circuit judge, to compel the vacation of an order. Denied.

Hooker J., dissenting.

Atkinson & Wolcott, for relator.

Lewis &amp Whittlesey and S. F. Kennedy, for respondent.

MONTGOMERY J.

The relator commenced suit by summons against Allan McCumber and John J. Bale, on the 7th of June, 1893, and subsequently filed a declaration alleging that an injury resulted to plaintiff while in the employ of the defendants, by reason of the failure of the defendants to provide plaintiff a safe place to work. The declaration set out the facts relied upon at considerable length, but was thought by plaintiff's attorneys to be faulty, and an application was made to amend by inserting an averment, as follows: "And the plaintiff alleges that, in the performance of all the matters aforesaid, he was in the exercise of due care, and did not in any way contribute to any of the injuries heretofore and hereafter stated." And, in another place: "And the plaintiff was, on the day and year aforesaid, while in the exercise of due care, caution, and prudence, injured," etc. The circuit judge denied the application, and, after moving to vacate the order, relator applied to this court for a mandamus to require the respondent to vacate the later order, and enter an order permitting an amendment.

It is evident from the circuit judge's return that the chief reason for denying the motion was that the plaintiff's cause of action, if commenced at the time of the proposed amendment, would have been barred by the statute of limitations, and that the proposed amendment stated a new cause of action, and that, therefore, it was beyond the power of the respondent to permit the amendment. It has been held in a number of cases that an amendment introducing a new cause of action cannot be permitted after the statute of limitations has run against the cause of action so sought to be set up. People v. Circuit Judge of Newaygo, 27 Mich. 138; Nugent v. Adsit, 93 Mich. 462, 53 N.W. 620, and cases cited. But in the present case the amendment does not, in our judgment, introduce a new cause of action. The declaration, as amended, relates to precisely the same state of facts, and no new theory is evolved by the proposed amendments, which simply amplify the averments contained in the original declaration by statements in no way inconsistent with those originally set out. It is a question of acknowledged difficulty to ascertain in just what cases an amendment may be said to set out a new cause of action, but we think the result of the authorities is well summarized in 1 Enc. Pl. & Prac. 564, as follows: "As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration 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. The test is whether the proposed amendment is a different matter, another controversy, or the same matter more fully and differently laid, to meet the possible scope and varying phases of the testimony." See, also, Wood v. Lane, 84 Mich. 521, 47 N.W. 1103; Abbott v. Chambers, 55 Mich. 410, 21 N.W. 911; Randall v. Gartner, 96 Mich. 284, 55 N.W. 843. And, where the amendment does not introduce a new cause of action, the running of the statute of limitations is arrested at the date of the institution of the suit. See 1 Enc. Pl. & Prac. 621. But, inasmuch as the circuit judge returns that his determination was reached upon consideration of other questions, we are not authorized to interfere with his discretion. The writ will be denied.

McGRATH, C.J., and LONG and GRANT, JJ., concurred.

HOOKER, J. (dissenting).

While I agree with my Brother Montgomery that the amendments asked by the relator were such as might have been granted, and that there was no room for the application of the statute of limitations, I am of the opinion that the relator is not entitled to the writ of mandamus. The question of amendment is one wholly within the discretion of the trial court. How. Ann. St. � 7631 et seq.; Railway Co. v. Forbes, 30 Mich. 165; Polhemus v. Bank, 27 Mich. 44; King v. Wayne Circuit Judge, 41 Mich. 727, 49 N.W. 925. This being conceded, the determination of the circuit judge is not subject to review, except in cases of abuse of discretion, or where it results in depriving a party of a right of action in either of which cases it has been held to be reviewable upon error. See Pangborn v. Insurance Co., 67 Mich. 683, 35 N.W. 814; Browne v. Moore, 32 Mich. 256. Until recently, these questions have been raised after judgment upon error. Thus, in Ripley v. Davis, 15 Mich. 82, the court held that the refusal of the circuit judge to permit the plea to be amended by the addition of a notice of the statute of limitation was a matter in the discretion of the court below "over which we have no power." In Browne v. Moore, supra, the court said: "In giving leave to change the notice, or, rather, to substitute the notice finally permitted for that which was originally attached to the plea, the court exercised a discretion, and such exercise could only be re-examined on writ of error in case it should appear that the power was abused; citing Ripley v. Davis, 15 Mich. 75; Final v. Backus, 18 Mich. 218; Tupper v. Kilduff, 26 Mich. 394; Polhemus v. Bank, 27 Mich. 44."

But it is urged that there is room to believe that the circuit judge based his ruling upon a mistaken opinion of the law, and that therefore he should be set right, when, if he had simply made the ruling without comment, it would have been in the language of Mr. Justice Martin, above quoted, a ruling or order "over which we have no power." This is introducing the doctrine that the power to review a discretionary ruling depends upon whether it can be said that the judge gave a bad reason for the ruling or not. If the ruling was unjust, it is pretty certain that it is based on a bad reason, whether the judge has chosen to state it or not. As an abstract proposition, the wrong should be righted in one case as much as the other. Yet all admit that it cannot be in the one case where the reason is not given, and in my opinion it should not be in either, the reason being the rule of law that it is a matter resting in a discretion confided to the trial court over which we have no control. Authorities are numerous to the effect that the discretion is not reviewable. Merrill, Mand. � 32, says "When a subordinate body is vested with power to determine a question of fact, the duty is judicial, and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what that decision ought to be." See, also, sections 110, 212. The authorities are to the effect that the court will not inquire into such matters, except in the instances heretofore mentioned, which will be adverted to later. Id. � 37, and cases cited in note 5. The case of Polhemus v. Bank, supra, is instructive in this connection. The question arose upon writ of error. In that case, as in this, the court denied a motion to amend a notice by adding an affidavit denying the execution of a note sued upon for the reason that he erroneously...