Sanborn v. Boston & M. R. R.

• Decision Date: 07 March 1911
• Citation: 76 N.H. 66,79 A. 642
• Parties: SANBORN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

79 A. 642

76 N.H. 66

SANBORN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

March 7, 1911.

Exceptions from Superior Court, Merrimack County; Plummer, Judge.

Action by Crosby A. Sanborn against the Boston & Maine Railroad. From an order granting plaintiff's motion to amend the declaration, and from an order suspending a rule of the superior court, defendant excepts. Exceptions overruled.

Prior to the April term, 1910, of the superior court, the plaintiff brought an action of assumpsit against the defendant to recover damages for breach of a contract of employment made by its agent in settlement of a claim for personal injuries sustained by the plaintiff while in its employment. Shortly before the October term, 1910, the plaintiff filed a motion asking leave to amend his declaration by striking out the count in assumpsit and substituting a count in case for personal injuries. At the hearing on the motion at the October term, it appeared that before filing the motion both parties had taken depositions in the case, and that after it was filed the defendant took the plaintiffs deposition and inquired into the facts and circumstances concerning the injury declared on in the count in case. The reason for asking leave to file the amendment was that in taking the deposition of the defendant's claim agent the plaintiff learned that the agent denied having authority to make the contract of settlement relied upon in the count in assumpsit. It did not appear that the defendant would stand differently if the amendment were allowed than it would if the plaintiff brought a new action in case; while if the motion was denied, and the plaintiff was required to bring a new action, he would be put to additional expense in the way of sheriff, entry, and counsel fees, and would also have to bear the expenses already incurred, including depositions taken by himself and attendance upon those taken by the defendant, and would be chargeable with the costs of the present action, including two voluminous depositions taken by the defendant. The motion was granted, it being found that its allowance was necessary to prevent gross injustice. Rule 16 of the superior court was suspended by the trial justice in the exercise of his discretion. The defendant excepted to both orders, and its exceptions were allowed so far as they presented questions of law.

Niles & Upton, for plaintiff. Foster & Lake and De Witt C. Howe, for defendant.

BINGHAM, J. The trial justice acted within his authority in suspending rule 16 of the superior court. Petition of Rindge, 54 N. H. 106, 108; Eastman v. Company, 44 N. H. 143, 154, 82 Am. Dec. 201.

Under the liberal practice in vogue in this state since the decision in Stebbins v. Insurance Co., 59 N. H. 143, if not from an earlier date, it has been customary for the court, if justice would be promoted, to allow amendments in legal proceedings, either of form or substance, provided that in so doing the rights of third parties would not be interfered with and the case could be rightly understood by the court. P. S. 1901, c. 222, §§ 7, 8. The underlying principle seems to be that a litigant should be accorded such remedies and methods of stating his grievance as may be necessary "to meet the meritorious contingencies of his case." Brooks v. Howison, 63 N. H. 382, 389. He has been permitted by amendment to change an action of trespass to land into a bill in equity for specific performance of an agreement to convey the land (Uncanoonuck Road Co. v. Orr, 67 N. H. 541, 41 Atl. 665); an action of debt for rent into assumpsit for use and occupation (Meredith, etc., Ass'n v. Drill Co., 66 N....