Failure to formally amend the pleadings will not affect a judgment based upon competent evidence. If an amendment to conform the pleadings to the proof should have been made, an appellate court will presume that it was so made to support the judgment. Comm'r v. Finley, 265 F.2d 885 (10th Cir., 1959); cf. Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452 (1935). The issue of improper construction of the sign was brought out without objection both on cross-examination of plaintiff's witness Mower and direct examination of defendant.
There is yet another reason why the ruling of the trial court should be upheld. Declarations of admissions of an employee made after an event or transaction has been completed (and not excited utterances) although admissible against the employee are inadmissible against the employer even though made in explanation of an act or event which was itself within his employment and authority. Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452 (1935); Benton v. Regeser, 20 Ariz. 273, 179 P. 966 (1919). See also Udall, Arizona Law of Evidence § 178, p. 389.
Where an employee is doing what he is supposed to do, the fact that he does it in a manner other than as expected is immaterial, and the employer remains liable for the employee's acts and conduct. Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452. The negligence which caused the injuries was the failure of Field and MacNeils to keep the magazine door locked or to prevent the dynamite caps from being accessible to children. This duty reposed upon each of the defendants.
One of the claims made by appellees with respect to her contributory negligence was that her speed and careless driving caused the accident at the involved intersection. Under these circumstances and others, disclosed by the record, we believe this evidence had some reasonable relation to the proximate cause of the accident and that its weight and probative force was a proper subject for consideration by the jury. For decisions which, although they are not on all fours with the case at bar, nevertheless support our conclusion on this point in principle see Gabel v. Hanby, 165 Kan. 116, 124, 193 P.2d 239; Godsey v. Cox, 135 Kan. 343, 344, 345, 10 P.2d 871; Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452; Melville v. State of Maryland, 155 F.2d 440; Glass v. Miller (Ohio), 51 N.E.2d 299. For recognized authorities, wherein the general subject is discussed, see 61 C.J.S., Motor Vehicles, 247 § 516 [a]; 5 Am.Jur., Automobiles, 850 § 630; Huddy Automobile Law [9th Ed], Vol. 15-16, 351 § 184; 9 Blashfield, Cyclopedia Automobile Law and Practice [Perm. Ed], 698 § 6235. The trial court's admission of testimony on the part of the appellees to the effect no partnership in the operation of the truck existed is also urged as error.
The evidence disclosed a Ford pickup truck loaded with an unusual cargo of from 2,500 to 3,000 elm seedlings, it reveals that from the time such truck was first observed by any witness it was weaving back and forth across the center line of the highway everytime it was seen by any witness up until just a few seconds before the collision, and it shows that when the accident occurred the same truck, driven by Burk, was partially across the center line of the pavement in the wrong lane of traffic. Under such circumstances we think all of this evidence had some reasonable relation to the proximate cause of the accident and that its weight and probative force was a proper subject for consideration by the jury. For decisions which, although they are not on all fours with the case at bar, nevertheless support our conclusion on this point in principle see Gabel v. Hanby, 165 Kan. 116, 124, 193 P.2d 239; Godsey v. Cox, 135 Kan. 343, 344, 345, 10 P.2d 871; Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452; Melville v. State of Maryland, 155 F.2d 440; Glass v. Miller (Ohio), 51 N.E.2d 299. For recognized authorities, wherein the general subject is discussed, see 61 C.J.S., Motor Vehicles, 247, § 516 [a]; 5 Am. Jur., Automobiles, 850, § 630; Huddy, Automobile Law [9th Ed], Vol. 15-16, 351, § 184; 9 Blashfield, Cyclopedia Automobile Law and Practice [Perm. Ed], 698, § 6235. In connection with the same claim appellees urge in effect that witness Lyter's positive testimony, that when he looked out his kitchen window the very moment after the crash occurred he saw the cloud of dust "right on the center a little west of the highway" and that he saw, what from his statements may be fairly inferred to be wet tracks leading from off the east side of the concrete slab to the center of the highway, some twenty-five paces south of the point of the collision, is ridiculous and not to be believed.
As to the verdictnot being so excessive as to infer that it was capricious,influenced by passion, prejudice or other considerations notto be found in the evidence: 103 S.E. 543, 114 S.C. 262, 15 Am. Jur. 623, Sec. 205; 43 S.E.2d 129, 132, 210 S.C. 423; 250 F. 652; 40 S.Ct. 450, 253 U.S. 77, 64 L.Ed. 780; 86 S.E. 176, 169 N.C. 446; 42 S.E.2d 705, 210 S.C. 367; 15 Am. Jur. 621, Sec. 204; 15 Am. Jur. 625, Sec. 207; 79 S.E. 406, 96 S.C. 267; 146 S.E. 97, 148 S.C. 266; 165 S.C. 43, 162 S.E. 582; 7 N.J. 290, 145 A. 223; (Ariz.) 47 P.2d 452; 329 Ill. 445, 160 N.E. 752; 92 Mont. 441, 15 P.2d 834; 175 Minn. 150, 220 N.W. 412; 10 N.J. 439, 159 A. 533; 212 Cal. 36, 297 P. 884; 55 F. Supp. 1012; 57 F. Supp. 813. As tothe trial judge properly stating his reasons for overruling themotion for new trial: 73 S.C. 268, 53 S.E. 424, 426; 54 S.C. 314, 32 S.E. 431, 442; 8 S.E.2d 366, 193 S.C. 220; 18 S.E.2d 212, 198 S.C. 403. Messrs. Dargan, Paulling James, of Darlington, JohnF. Wilmeth, of Hartsville, and Woods Woods, of Marion, for Appellant, in reply, cite: As to interpretations and applicationsof the principles of common law by the FederalCourts governing in cases brought under the Federal Employer'sLiability Act: 284 U.S. 44, 76 L.Ed. 157; 155 S.C. 531, 152 S.E. 717, 720. As to the word "positive" beingsynonymous with the word "absolute": Webster's Twentieth Century Dictionary; 192 S.C. 156, 5 S.E.2d 862. Asto no duty on defendant to have "foreseen the precise injuryitself": 320 U.S. 476, 88 L.Ed. 239; 211 S.C. 232, 44 S.E.2d
In that case the evidence showed, although it is not referred to in the opinion rendered by this court, that at the time of the accident plaintiff was gainfully employed and was so badly injured that for the balance of her life she would be a permanent cripple to such an extent as to require a nurse for most, if not all, of the time. See, also, Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452. It is true that there have been many verdicts sustained in other states for an amount far greater than that rendered in the present action, but each case must stand upon its own footing, for no two are exactly alike. Taking into consideration the evidence of the extent and nature of plaintiff's injuries and the entire background of the case, we are of the opinion that the very large amount allowed by the jury for the pain and suffering of the plaintiff was the result of sympathy and prejudice, unconscious though it doubtless was on its part, rather than an application of calm judgment and dispassionate reason to the facts of the case.
We think, however, that the objection may well be disposed of on the merits. In the case of Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452, 459, we said, in considering a cross-examination under the statute of a party defendant, "He was not a mere nominal party but one greatly interested in the outcome of the litigation and this is all the statute requires to give the adverse party the right to cross-examine him." We think the court did not err in permitting the plaintiff to cross-examine defendants Blair and Melczer under the statute as adverse parties.
Such being the situation, the defendant was hardly in a position to say that it was surprised at the request to amend or that it would have been injured by an order allowing it. Brooks et al. v. Neer, 46 Ariz. 144, 47 P.2d 452. However, it did make such a claim and, instead of treating it as a new cause of action barred by the statute of limitations, the court, if he felt there was sufficient basis for it, should have given time to defend against the amended pleading.
Failure to formally amend the pleadings will not affect a judgment based upon competent evidence. If an amendment to conform the pleadings to the proof should have been made, an appellate court will presume that it was so made to support the judgment. Comm'r v. Finley, 265 F.2d 885 (10th Cir., 1959); cf. Brooks v. Neer, 46 Ariz. 144, 47 P.2d 452 (1935)." 94 Ariz. at 71, 381 P.2d at 756, 757.