Rolleg v. Lofton

• Decision Date: 03 May 1921
• Docket Number: No. 2872.,2872.
• Parties: ROLLEG v. LOFTON.
• Court: Missouri Court of Appeals

230 S.W. 330

ROLLEG v. LOFTON.

No. 2872.

Springfield Court of Appeals. Missouri.

May 3, 1921.

Appeal from Circuit Court, Jasper County; A. W. Thurman, Special Judge.

Action by Florence Rolleg against Thomas Lofton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

S. W. Bates, of Webb City, for appellant.

COX, P. J.

Action for damages resulting from plaintiff having been bitten by a dog belonging to defendant. Judgment for plaintiff for $500, and defendant has appealed.

The errors assigned are the permission given the plaintiff to amend her petition at the close of the testimony and error in instruction for plaintiff.

The original petition was based solely on the ground that defendant had permitted his dog to run at large when he knew or by the exercise of ordinary care could have known that it was afflicted with rabies, and thereby permitted it while in that condition to attack and bite plaintiff. This petition was amended by adding thereto an allegation that the dog was of vicious habits and disposed to bite persons, and that defendant with knowledge of that fact permitted it to run at large and attack and bite plaintiff. This amendment on motion of defendant was stricken out. The case was not tried at that term, and at the next term the regular judge who had passed on the motion to strike out was sick, and Hon. A. W. Thurman was selected to preside as special judge in the trial of this case. During the trial the plaintiff offered evidence tending to show the vicious habits of the dog and defendant's knowledge thereof. This evidence was objected to by defendant, but admitted over his objection. At the close of the evidence, the plaintiff asked and was permitted over the objection of defendant to amend her petition by interlineation so as to insert the charge of the vicious habits of the dog. The defendant now contends that the ruling of the former judge at the former term sustaining the motion to strike the same allegation out of the petition was res adjudicata and could not afterward be permitted. We do not agree with this contention. Amendments at any time before final judgment in furtherance of justice are specifically allowed by section 1274, Stats. 1919, and the courts have uniformly held that this and similar statutes must be liberally construed, and when the amendment does not change the character of the cause of action, it should be permitted. McClanahan v. Boggess, 154 Mo. App. 600, 136 S. W. 237.

We do not think the amendment in this case changed the character of plaintiff's cause of action. Her cause of action was based on the fact of her having been bitten by defendant's dog, and we think it was permissible for plaintiff to allege all the facts which would show defendant's responsibility for the actions of the dog. If the dog had rabies, and defendant knew, or by ordinary care could have known, of that fact, and permitted the dog to run at large, he would be responsible. If the dog did not have rabies, but was of a vicious nature and habits, and defendant knew, or by ordinary care could have known, of that fact, and permitted the dog to run at large, he would be responsible. The ultimate fact to be proven was the probability of the dog to bite persons if permitted to run at large and defendant's responsibility therefor. The cause of action was not based on the fact that the dog had rabies nor on the fact that it was of vicious habits, but was based on the fact that it bit plaintiff under such circumstances as to render defendant responsible therefor. This responsibility might be fixed by showing either that the dog had rabies or that he was vicious, and if either of these facts were shown and knowledge thereof brought home to defendant, or facts shown by which it would appear that he ought to have known of the condition of the dog and he permitted it to run at large while in that condition, he would be responsible. We think the trial court erred in striking out the amendment in the first instance, and it was the duty of that court to correct that error at its first opportunity. If defendant was not ready to meet the testimony as to the vicious disposition and habits of the dog, he should have asked for a continuance and have protected himself in that way.

We have examined carefully the cases cited by appellant on the question of res adjudicata, and they are clearly distinguishable from this case. In the case of Haughawout v. Royse, 122 Mo. App. 72, 98 S. W. 101, it appears that in a former suit in replevin by the same plaintiff against the same defendant the petition had been amended by setting up new elements of damage. On motion of defendant these new elements of damage were stricken out because not relevant and did not constitute proper elements of damage in that suit. That case then proceeded to judgment with the new elements omitted. Afterward, another suit was brought to recover for the alleged damages stricken out of the former petition, and the court held that, that part of the petition having been stricken out at defendant's request, he could not stand on the defense of res adjudicata in the new suit. The court also held that the fact that they were stricken out in the former suit because not germane to that suit was res adjudicate on that question in that suit, but that a new suit to recover that damage could be maintained. We do not think the principle involved in that case applies to this one.

The case of Renfro v. Prior, 22 Mo. App. 403, was an action for damages for malicious prosecution. The petition was in four counts. The first count was based on a matter that had no connection with the charges in tie other three counts. At the beginning of the trial the defendant objected to the introduction of any testimony under either count on the ground that neither stated a cause of action. This objection was sustained as to the first and fourth counts and overruled as to the second and third counts. The trial then proceeded on the second and third counts, and no testimony was offered under the first count. At the close of the testimony the plaintiff was permitted to amend the first count by interlining the allegation for the omission of which it had been held bad. The verdict was returned for plaintiff on the first count and for defendant on the second and third counts. On appeal it was held the amendment at the time it was made was improper, but, as we understand the opinion, it was not based on the ground that the court's action in sustaining the objection to the...