The Hartford City Natural Gas and Oil Company v. Love
| Citation | 25 N.E. 346,125 Ind. 275 |
| Decision Date | 08 October 1890 |
| Docket Number | 14,438 |
| Parties | The Hartford City Natural Gas and Oil Company v. Love |
| Court | Indiana Supreme Court |
From the Blackford Circuit Court.
Judgment affirmed, with costs.
J. A Bonham, W. H. Carroll and H. Brownlee, for appellant.
A. E Steele and J. A. Kersey, for appellee.
This was an action brought by the appellee to recover damages because of injuries to the person of the appellee occasioned by the alleged negligence of the appellant.
The complaint was in one paragraph, and the answer in one paragraph--the general denial.
The cause was submitted to a jury; after the evidence of the appellee had been introduced the appellant demurred thereto, and the jury was discharged. After the discharge of the jury the appellee asked and obtained leave of the court to amend his complaint.
Until the complaint was amended it was clearly bad, as there was no negative allegation of contributory negligence to be found therein.
The amendment cured the infirmity.
The appellant objected to the amendment, reserved an exception and filed a bill of exceptions. Its contention is that the amendment came too late; that after the demurrer was submitted and the jury discharged it was not within the power of the court to allow the amendment. We can not agree with this contention. It is in the face of the provisions of the statute (section 396, R. S. 1881).
The amendment did not change the nature of the cause of action; it simply cured an infirmity because of the omission of a material allegation in the statement of the cause of action alleged, and was in furtherance of justice. It may, with propriety, be contended that but for the said infirmity in the complaint the appellant would not have taken the risk of addressing a demurrer to the evidence, but this contention can not influence our conclusion. If the appellant had, after the amendment, asked permission to withdraw its demurrer, it would have been the duty of the court to have granted its request, and its refusal would have been error.
We have examined the evidence, and recognizing as we do the well-settled rule which prevails in cases where the evidence is demurred to, that all material facts which the evidence tends to establish, assisted by all reasonable inferences which a jury might draw from such evidence, are to be taken in favor of the party against whose evidence the demurrer is addressed, we...
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Citizens' St. R. Co. v. Stoddard
...shown the court may permit the defendant to abandon the position he deliberately chose to occupy when he made such motion. Oil Co. v. Love, 125 Ind. 275, 25 N. E. 346. That in such case, if the defendant, after an adverse ruling on his motion, without objection on the part of the plaintiff,......
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The Citizens' Street Railroad Company of Indianapolis v. Stoddard
... ... exercise of ordinary care. City of Indianapolis v ... Emmelman, 108 Ind. 530, 9 N.E. 155; Elliott's ... occupy when he made such motion. Hartford City, etc., ... Co. v. Love, 125 Ind. 275, 25 N.E. 346 ... ...
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