Wipfli v. Martin

• Decision Date: 28 February 1967
• Citation: 34 Wis.2d 169,148 N.W.2d 674
• Court: Wisconsin Supreme Court
• Parties: Lena WIPFLI, Appellant, v. Ralph I. MARTIN, Defendant, the Fidelity & Casualty Co. of New York, a foreign corporation, Respondent.

Page 674

148 N.W.2d 674

34 Wis.2d 169

Lena WIPFLI, Appellant, v. Ralph I. MARTIN, Defendant the Fidelity & Casualty Co. of New York, a foreign corporation, Respondent.

Supreme Court of Wisconsin.

Feb. 28, 1967.

Brazeau, Brazeau, Potter & Cole, Wisconsin Rapids, for appellant.

Crowns, Crowns, Merklein & Midthun, Wisconsin Rapids, for respondent.

BEILFUSS, Justice.

The record, briefs, and argument of counsel suggest several issues that could be discussed, such as: Is a motion to 'delete a party' a motion to strike and is it appealable? Did the defendant Fidelity waive the insufficiency of the complaint by not raising the question by demurrer or answer? Did the court err in not granting the motion to amend the complaint before trial? Did the court err in denying the motion to review its order denying the motion for leave to amend?

The crucial issue is whether the plaintiff should be permitted to amend the complaint to state a direct cause of action against the liability insurance carrier. Under the facts in this case this issue can be resolved by determining whether the trial court abused its discretion in denying the motion of June 21st (the day before trial) for leave to amend the complaint.

Sec. 269.44, Stats., provides:

'Amendments of processes, pleadings and proceedings. The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding, notwithstanding it may change the action from one at law to one in equity, or from one on contract to one in tort, or vice versa; provided, the amended pleading states a cause of action arising out of the contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based.'

In Girtz v. Oman (1963), 21 Wis.2d 504, 509, 124 N.W.2d 586, 590, we stated:

'This section gives the trial court wide discretion as to amendment of pleadings. Grady v. Hartford Steam Boiler Inspection & Ins. Co. (1954), 265 Wis. 610, 617, 62 N.W.2d 399; Kuester v. Rowlands (1947), 250 Wis. 277, 282, 26 N.W.2d 639.'

State ex rel. Schroedel v. Pagels (1950), 257 Wis. 376, 382, 43 N.W.2d 349, 352, quotes Turner Mfg. Co. v. Gmeinder (1924), 183 Wis. 664, 669, 198 N.W. 611, 613, as follows:

"It is well settled that, when a trial court keeps within the limitations imposed by the statute as to allowing amendments, the power is very broad, resting in sound discretion, and the decision will not be disturbed except for a clear abuse of judicial power."

The cases cited above all sustain the action of the trial court in instances wherein the pleadings were amended.

Conversely, in Platt v. Schmidt (1902), 115 Wis. 394, 398--399, 91 N.W. 992, 993, where the trial court refused to allow the amendment, it is stated:

'When it appears that an omission in any proceeding is material, or that proceedings taken by a party so fail to conform to provisions of law as to be fatal to rights which might otherwise be protected, and that such omission or failure is through mistake, inadvertence, surprise, or excusable neglect, it is abuse of discretion to refuse to supply such omission, and permit amendment of the proceedings so as to remove the technical obstacles to a litigation of the merits of the controversy.' ¹

From these cases and others we conclude the rule to be that sec. 269.44, Stats., should be liberally construed to permit the amendment of the pleadings so as to present the entire controversy providing the amendment does not unfairly deprive the opposing party of timely opportunity to meet the issue created by the amendment.

The trial court's stated reason for denying the motion to amend was that it was 'not timely made.'

The material omission from plaintiff's complaint was an allegation to the affect that Fidelity had issued a valid policy of...