Summary
noting pleadings may be amended before, during and after trial; test is whether amendment takes opposing party by surprise
Summary of this case from Benedict v. Pensacola Motor SalesOpinion
February 28, 1950. Rehearing Denied April 14, 1950.
Appeal from the Circuit Court for Duval County, Bryan Simpson, J.
Charles Cook Howell, Wilmington, N.C., and McCarthy, Lane Howell, Jacksonville, for appellant.
Will O. Murrell, Jacksonville, for appellee.
In attempting to board the caboose attached to a moving freight train owned and operated by the Atlantic Coast Line Railroad Company, Wilton Edenfield was thrown to the ground and was run over and killed. Pauline Edenfield, wife of the deceased, was appointed administratrix of his estate and brought this suit to recover damages for the negligent death of her husband. The action was brought under the Federal Employers' Liability Act, as amended in 1939, 45 U.S.C.A. § 51 et seq. As originally filed the declaration alleged that deceased was employed as a flagman by appellant, that while he was thus employed, on February 1, 1948, defendant carelessly and negligently propelled and ran a train against deceased whereby he was fatally injured and killed. He left surviving him, his widow, the appellee, and four minor children.
When the case came on for trial, the plaintiff moved to amend the declaration by substituting the words "ordering of deceased to board a moving train and carelessly and negligently failing to furnish deceased a safe place to work, whereby a moving train was run against and upon deceased" for the words, "the negligent propelling and running of a railroad train against and upon deceased." The court permitted the amendment and proceeded with the trial, despite defendant's motion for continuance on the ground that its defense to the declaration as amended was insufficient, that the amended declaration took it by surprise and that a continuance was essential in order that defendant might be enabled to prepare its defense adequately.
The amendment to the declaration was offered pursuant to Section 50.20, Florida Statutes 1941, F.S.A., which provides, among other things, that amendments to pleadings may be made at all times whether there is anything to amend by or not, but upon such terms as the court may deem fit. The liberal policy for amending pleadings provided by this act has been recognized repeatedly. It may be done by either party before or during the trial or after the verdict is rendered. Carroll v. Gore, 106 Fla. 582, 143 So. 633, 89 A.L.R. 1495. Rule 15, Florida Common Law Rules, effective January 1, 1950, is more comprehensive than the statute. By the rule amendments may be made to the pleadings to make them conform to the evidence.
The gist of appellant's contention is that the amended declaration stated a new and different cause of action and that defendant was taken by surprise. The test to determine whether or not an amended declaration states a new or different cause of action is whether or not the same evidence will support the judgment rendered as to the original or the amended declaration. The trial court answered this question in the affirmative and it is not shown that he abused his discretion in so doing. The real substance of both the original and the amended declaration was the negligent running or propelling of a moving train "against and upon deceased." It is true that the amended declaration introduced the element of "safe place to work" but an examination of the evidence reveals no showing that defendant was prejudiced by the amendment. It did no more than amplify the allegations of the original declaration.
Appellant supports its contention with Atlantic Coast Line Ry. Co. v. Johnson, Fla., 40 So.2d 892, 895. The predicate for the majority opinion in this case was that the evidence brought into the picture at the trial, revealed failure on the part of defendant to instruct plaintiff as to what was known as the "blue flag rule", such failure not having been mentioned in the declaration. The evidence in the case at bar makes no such showing as to "safe place to work" as was made as to blue flag rule in the last cited case. In fact, the evidence in the case at bar is directed to the question of negligence and the matter of a safe place to work had little, if any thing, to do with the verdict and judgment.
It is next contended that the trial court committed error in refusing to permit the introduction of evidence by defendant to the effect that three weeks before the tragedy in question the conductor told the deceased that in his opinion it was unsafe practice to catch the front end of the caboose to board the train.
No reversible error was committed in rejecting this evidence. The practice was not shown to be contrary to any rule of the defendant. It was remote, and had no relation to the death of appellee's husband and amounted to nothing more than a casual suggestion to him.
The judgment appealed from is therefore affirmed.
Affirmed.
ADAMS, C.J., and CHAPMAN and ROBERTS, JJ., concur.
THOMAS, SEBRING and HOBSON, JJ., dissent.
I cannot agree with the opinion of the court because it approves the trial judge's order allowing an amendment to the declaration. The declaration originally charged that the defendant "propelled and ran a railroad train against [the deceased]," and the issue of negligence was formed by a plea of not guilty. After a jury was empaneled and sworn, counsel for the plaintiff asked the court for permission to amend the declaration by deleting the words we have quoted and substituting the allegation that the defendant "ordered the said [deceased] to board a moving train and carelessly and negligently failed to furnish the said [deceased] a safe place to work whereby a moving train was run [sic] defendant, carelessly, and negligently against" the deceased.
Immediately the court granted the plaintiff's request the defendant moved that the trial be continued or, in the alternative, that a mistrial be declared.
I think the court erred when it did not grant this request on the part of the defendant because of this material change in the declaration which the defendant stated that it was not prepared to meet.
I am quite in sympathy with any effort on the part of the courts to speed litigation, but it is my view that lofty as the court's motive was, its application in the instant case caused injustice. He said that the nature of the case bore considerable weight in making his ruling, that if the privilege of making the amendment had been denied to the plaintiff her counsel "would have been forced to take a non-suit, and it would be several months, perhaps fall, before this lady could get back into court with her case." However, it seems to me that the defendant should not have been disadvantaged in order to save delay to the benefit of the plaintiff when the defendant, of course, was wholly unresponsible for the state of the plaintiff's pleadings. I cannot see how it is fair to charge the defendant either with an imperfection in the declaration or the belated effort to correct it.
Certainly, if the amendment was of such importance that, had it been denied, the plaintiff would have been "forced" to take a nonsuit, it was so important that when it was allowed, the defendant should have been given a reasonable time to meet it.
The record shows that the declaration was filed March 2, 1949 and that the defendant filed his pleas the 4th of the following month. It does not disclose that there was any demurrer or dilatory pleading. The case was set for trial and the jury selected June 13, 1949. So during the intervening three months the plaintiff could have made the same request without causing any embarrassment or disadvantage to the defendant. Yet the motion for the amendment did not come until after the jury had been sworn.
For the reasons given I dissent.
SEBRING and HOBSON, JJ., concur