St. Louis, I. M. & S. Ry. Co. v. Power

• Decision Date: 04 November 1899
• Citation: 53 S.W. 572
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. POWER.
• Court: Arkansas Supreme Court

53 S.W. 572

ST. LOUIS, I. M. & S. RY. CO. v. POWER.

Supreme Court of Arkansas.

November 4, 1899.

Appeal from circuit court, Saline county; Alexander M. Duffie, Judge.

Action by Laura J. Power against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. T. J. Oliphant and Hill & Auten, for appellee.

WOOD, J.

The appellee alleged that she was a passenger on appellant's train going from Little Rock to Mabelvale, and that she was negligently and carelessly carried by said station Mabelvale, and was put off at the station of Alexander. She sets out how she was inconvenienced thereby, and for this, and the distress of body and mind incident thereto, she claimed damages in the sum of $2,000. The appellant answered, denying the allegations of the complaint, and alleging that the train did stop at Mabelvale, but that appellee, through negligence and carelessness, did not alight at said station, although having ample time to do so. The parties announced ready for trial on the issues thus joined, and a jury was impaneled and sworn, whereupon the plaintiff asked leave to amend her complaint by interlining the following: "That the conductor of said train was intoxicated, and abusive, and thus negligently and wantonly run said train past said station of Mabelvale, and was abusive and insulting to plaintiff upon arriving at Alexander, and jostled and insulted her at that time;" and the abuse of said conductor and his treatment of her caused a "nervous shock, and she was made sick thereby." The defendant objected to the above amendment being made, "because it set up a new cause of action and additional elements of damage, * * * of which new cause of action the defendant had no notice, and was not prepared for trial." The court overruled said objections, and allowed the amendment to be made, to which ruling "the defendant objected and excepted." Defendant thereupon stated to the court that it was surprised by said amendment, and that it was not prepared for trial upon said complaint as amended, and asked that the case be continued, and it be given proper time to make its defense to said new cause of action; and that the defendant believed, if given proper time, it could make a good defense to said complaint as amended. This the court refused, and ordered the trial to proceed at once; to which ruling the defendant objected, and saved its exceptions.

The amendment was proper. The effect of it, however, was such as to introduce an additional element of damages, and perhaps to change the action from one merely upon the contract to an action ex delicto. Fordyce v. Nix, 58 Ark. 136, 23 S. W. 967. Under the original complaint no proof except as to actual damages growing out of a breach of the contract was allowable. Under the complaint as amended, new and original elements of bodily pain and mental anguish were proper to be considered in determining the amount of damages. Likewise the amended commade a case for vindictive damages. Fordyce v. Nix, supra. Such a radical change from the issues as formulated by the original pleadings, produced by one of the parties just before entering upon the proof, was well calculated to surprise his adversary. The court erred in not granting a continuance or postponement to allow appellant to prepare to meet these new and original phases of the case. The motion for continuance was verbal, and perhaps not full enough to meet the requirements of good pleading. But the court was sufficiently advised by the statement of appellant, set forth in the bill of exceptions, as to the grounds of its surprise, and its inability, at that juncture of the proceedings, to meet the issues presented by the amended pleadings. It informed the court, also, that it believed it could present...