Trower v. Roberts

• Decision Date: 14 November 1911
• Citation: 120 P. 617,30 Okla. 215,1911 OK 446
• Parties: TROWER v. ROBERTS.
• Court: Oklahoma Supreme Court

120 P. 617

30 Okla. 215, 1911 OK 446

TROWER v. ROBERTS.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

Amendments of pleadings may be allowed in furtherance of justice when such amendments do not substantially change the cause of action or the defense.

In an action for slander, it is not error to permit the filing of an amended petition charging the utterance of other and different slanderous words from those alleged in the original petition, where the new cause of action charged is of the same general character and import as that contained in the original petition, and where the defendant is given ample time and opportunity to prepare to meet the allegations contained in the amended petition. Such an amendment does not substantially change the plaintiff's claim within the meaning of section 5679, Compiled Laws of Oklahoma 1909.

To permit amendments when not changing the cause of action rests within the sound discretion of the trial court, and will not be disturbed on appeal unless it affirmatively appears that its exercise has operated to the prejudice of the rights of the complaining party.

Where a deposition is taken pursuant to notice, and the opposing party appears and cross-examines the witness, and the testimony is taken by a stenographer and immediately transcribed, and which testimony is then read by the witness and subscribed by him in the presence of the officer taking the deposition, no objections to the time or manner of taking the deposition or the fact that the stenographer's notes were transcribed in the absence of the officer being made by opposing counsel, the fact the deposition was not written in the officer's presence will be deemed to have been waived, and cannot be raised for the first time upon a motion to suppress the deposition so taken, filed on the day that the action is called for trial.

Commissioners' Opinion, Division No. 1. Error from District Court, Garfield County; H. G. McKeever, Special Judge.

Action for slander by Nannie E. Roberts, defendant in error plaintiff below, against George F. Trower, plaintiff in error, defendant below. Judgment for plaintiff, and defendant brings error. Affirmed.

Parker & Simons, for plaintiff in error.

Robberts & Curran, for defendant in error.

SHARP C.

On August 11, 1904, defendant in error, plaintiff below, brought an action for slander against plaintiff in error, defendant below. The petition contained two causes of action, the first of which charged that defendant on the 1st day of December 1903, in a certain discourse which said defendant then and there had of and concerning plaintiff and in the presence and hearing of numerous persons and citizens of said locality and in the presence of Beulah Schindaurf, Ida Schindaurf, Mrs. Eva Trower, and A. Schivaleer, and in the presence of plaintiff, said defendant falsely, unlawfully, wickedly, and maliciously spoke and published of and concerning said plaintiff the following scandalous, false, and malicious words: "Now you see what a God damned outfit she has backing her up. See what a pack of whores she is keeping around her. Mrs. Roberts let Earnest Walters and Ida Schindaurf sleep all night together in her bed." The second cause of action charges that on or about July 19, 1904, defendant, in a certain discourse then and there had about and concerning plaintiff, and in the presence of numerous persons, referring to his, the defendant's wife, who had left him and taken refuge at the home of plaintiff, who was her sister, and in referring to the matter and in the presence of S. T. Worley, Dessie Bell, Joe Linn, Charles Worley, Charles Rogers, and Herman Shoemaker, the defendant falsely, unlawfully, wickedly, and maliciously spoke and published of and about and concerning plaintiff the false, scandalous, and malicious words following: "That God damned Roberts is to blame for my entire trouble with my wife, and the worst I hated was that she was up there with that God damn set of whores." Plaintiff asked damages in the sum of $5,000 on each cause of action. A demurrer to the original petition was sustained, and on November 15, 1904, plaintiff filed an amended petition setting up in a changed form the two original causes of action and a third and additional cause of action, which charges that defendant on or about November 30, 1903, in a certain discourse which he then and there had of and concerning and about plaintiff, and in the presence and hearing of numerous people and citizens of said locality and in the presence and hearing of S.W. Wilcox and other persons, whose names were at the time unknown to plaintiff, the certain, false, scandalous, and malicious words following: "That God damned woman is a whore, and I can prove it. Joe Black slept with her, and was seen coming out of the house next morning." For this cause of action plaintiff asked additional damages in the sum of $5,000. On December 5, 1904, the defendant filed a motion to strike from the amended petition the third cause of action, for the reasons: "(1) That it stated an entirely different, separate, and distinct cause of action from that contained in the original petition. (2) That the third cause of action is irrelevant and redundant." This motion was on the same day overruled and exceptions saved, and thereafter, and on December 10, 1904, defendant answered. The action was tried on April 22, 1908, resulting in a verdict for plaintiff.

There are but two questions presented for our consideration:

(1) It is claimed by plaintiff in error that the trial court erred in overruling the motion of defendant to strike the third cause of action from the amended petition.

(2) That the court erred in not sustaining the motion of defendant to suppress the deposition of J. H. Shoemaker.

These objections will be considered in the order named.

Section 5679, Snyder's Compiled Laws of Oklahoma 1909, provides "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment." This section has recently, on several occasions, been construed by this court. In Fort Produce Co. v. Southwestern Grain & Produce Co., 26 Okl. 13, 108 P. 386, it is said: "This section of the statute, with many other provisions of the Code now in force in this state, was brought into this jurisdiction by adoption from the state of Kansas. The Supreme Court of that state in 1892, just prior to the time of the adoption of the statute by the territorial Legislature, construed the foregoing section, and applied it to a state of facts very similar to the facts in the case at bar. Culp v. Steere et al., 47 Kan. 746, 28 P. 987." In that case, Mr. Justice Valentine, delivering the opinion, said: "The statute does not provide that the amendment shall not change the form of action or cause of action; but it simply provides that the amendment shall not 'change substantially the claim or defense."' In Snider v. Windsor et al., 77 Kan. 67, 93 P. 600, the original petition set up a cause of action for foreclosure of a mortgage, and the trial court permitted an amendment converting the action into one of replevin to obtain possession of the property covered by the mortgage. The action of the trial court in permitting the amendment was held to be error. Stevens v. Matthewson, 45 Kan. 594, 26 P. 38, was an action to recover the balance due on a contract for land. The defendant in his answer alleged that he was induced to enter into the contract by false representations respecting the land made by plaintiff and his agent, and pleaded a rescission of the contract. He was afterwards permitted to amend his answer so as to allege that the false representations were made with the intent to deceive him, and that he relied thereon and was damaged by reason of the land not being as represented, and asked judgment for damages. The amendment was sustained by the appellate court. These cases and others are cited and reviewed by the court in Fort Produce Co. v. Southwestern Grain & Produce Co., supra, and in which the court directs attention that the tendency of all the courts is to give to the statute a broad construction. The court concludes by...