Boyle v. Chicago, Milwaukee & St. Paul Ry. Co.

MR. COMMISSIONER JACKSON

prepared the opinion of the court.

Appeal from an order denying a new trial. This action was for damages on account of personal injuries alleged to have been sustained by plaintiff while an employee of the defendant. In the course of her employment, it was her duty to move certain levers which governed the action of semaphores on the railroad line, and while moving one of them she alleged that by defendant’s negligence it broke, and she was thrown to the floor, sustaining the alleged injuries.

[1] Among other allegations, the complaint states: “That said lever at said times, and for a long time prior thereto, was cracked, defective, weak, and dangerous; that defendant had negligently and carelessly neglected and omitted to responsibly inspect the condition of the same; that a reasonable inspection would have disclosed the said condition of the same; that defendant likewise negligently and carelessly failed and- omitted to warn or give notice to plaintiff of its said condition, and likewise negligently and carelessly allowed and permitted the same to remain in said condition for a long period of time prior to the actual breaking thereof; that defendant knew of the said condition of said lever, or by the exercise of reasonable care and caution on its part would have known thereof, but that same was wholly unknown to and unsuspected by this plaintiff, and by the exercise of due care on her part could not have become known to or discovered by her.”

A general demurrer was overruled. At the trial, before any testimony was given, defendant objected to the introduction of any evidence, basing its objection on the insufficiency of the complaint. The objection was overruled. Defendant’s motion for a nonsuit on the ground that the complaint did not state facts sufficient to constitute a cause of action, and on the fur *458 tber ground that the evidence did not show, nor tend to show, negligence on its part, was denied, and its motion for a directed verdict on the same grounds at the close of all of the testimony was granted. Judgment was entered for defendant on the verdict. Before the court had ruled on the latter motion, plaintiff sought leave to amend the complaint by making definite the time during which defendant knew, or should have known, of the defective mechanism. The motion was denied. Since the action of the court in this case in denying the motion for a new trial must be affirmed on the insufficiency of the complaint, it is not necessary to consider the evidence.

Under the settled law of this state the complaint is fatally defective, in that the time alleged during which defendant’s knowledge of the defect in the lever, or opportunity to know, is not definite, and does not come within the requirements of section 6532, Bevised Codes. “The allegation is but a conclusion which the pleader has left unaided by the statement of any specific fact to enable one to determine what the length of time was.” (McEnaney v. City of Butte, 43 Mont. 526 , 117 Pac. 893 .) In fact, as to the sufficiency of the complaint, it seems conceded by plaintiff that it is defective, as all of the arguments and citations in the brief are addressed to the court’s action in denying the application to amend.

[2] The defendant protected its position by demurrer and objection to the introduction of any evidence under the complaint, in compliance with section 6535, Bevised Codes, and as has been well stated in Ecclesine v. Great Northern Ry. Co., 58 Mont. 470 , 194 Pac. 143 , citing Ferrat v. Adamson, 53 Mont. 172 , 163 Pac. 112 : “The sufficiency of the complaint may be tested by demurrer or by objection to the introduction of evidence. In either event, the adverse ruling is excepted to, and the exception, once saved, is saved for all purposes.”

[3] Had the evidence been received without objection, unquestionably it would have been the duty of the court to permit the amendment. But since all of plaintiff’s testimony was admitted over defendant’s objection, its exception to the court’s *459 ruling placed defendant in such a position that, so far as it was concerned, under a fatally defective oomplaipt, the evidence introduced cannot be considered.

No human agency is infallible, and if the trial judge had mistakenly overruled the demurrer and the objection to the introduction of any testimony, and had likewise denied the motion for a nonsuit, he was not bound thereby to continue his mistake and deny the motion for a directed verdict, when the error of his previous rulings became apparent.

If plaintiff had been permitted to amend, and the record does not show the amendment was offered to conform to all or any of the proof, what could be the sense or good judgment in the position of the defendant in establishing a right by demurrer or objection? It would be simply a work of supererogation.

The cases cited by plaintiff are not to the point in the instant case, and go mainly toward the discretionary power of the trial court to permit amendments in the furtherance of substantial justice. Has plaintiff been denied a substantial right in this case? We think not. She entered the courts on nothing, namely, a defective complaint. The defect was pointed out by demurrer and objection, and she had ample opportunity to correct it. Since she did not do so, and since the defendant stood on the right that its attitude during the litigation gave it, plaintiff cannot complain. The court did not abuse its discretion in denying the application to amend.

All the well-settled law of the land is in accord with defendant’s position in matters that parallel this action.

“A motion, after the close of the evidence, to conform the pleadings to the proof, can never be granted where the admission of the evidence was properly objected to when it was offered.” (North Western Thresher Co. v. McNinch, 42 Okl. 158 , 140 Pac. 1170 , and cases there cited.)

“The right to amend a pleading so as to make it conform to the proof proceeds upon the theory that it presented the issues sought to be established by the evidence introduced and *460 admitted without objection, but that some material allegation had been inadvertently omitted therefrom. In such cases it is the duty of the court, after the evidence upon the supposed issue has been introduced without objection, to permit the amendment; but, when objection has been made to its introduction, the court has no authority to allow such amendment, as this would have a tendency to invert the orderly mode of trial prescribed by statute, and lead to the practice of settling issues after, instead of before, trial, thereby returning to primitive methods. The plaintiff having made objection to the introduction of this evidence, there was no abuse of discretion in. denying leave to the defendant to file its amended answer.” (Mendenhall v. Harrisburg Water Power Co., 27 Or. 38 , 39 Pac. 399 .)

For the reasons stated, we recommend that the order appealed, from be affirmed.

Per Curiam :

For the reasons given in the foregoing opinion, it is ordered that the order appealed from be affirmed.

Affirmed.