Opinion
No. 21667
Decided December 24, 1929.
Trial practice — Discretion of court — Overruling motion to direct verdict — Variances between pleading and evidence disregarded by parties — Permitting amendment of pleadings to conform to proof — Withdrawing juror, declaring mistrial and continuing case — Error proceeding — Withdrawing juror and continuing case, not final order.
1. It is not the absolute duty of a trial court to sustain a motion of the plaintiff for a directed verdict at the close of the defendant's affirmative defense, upon the ground that the evidence adduced technically does not tend to support the affirmative allegation of defendant's answer, where both the plaintiff and defendant throughout the trial, up to the moment of the motion, have ignored the variance and conducted the trial as though the pleadings and evidence conformed.
2. Where a pleading is susceptible of an amendment and the pleader is willing to make an amendment thereto to conform to the proof, it is within the sound discretion of the court to overrule a motion for a directed verdict and permit an amendment to a pleading for that purpose.
3. When in the progress of a trial the court has determined that such error has intervened as would vitiate any verdict that the jury might return and that the error can not be cured in that trial, it is not error for the court to withdraw a juror, declare a mistrial and continue the case upon the trial docket.
4. Such proceeding does not constitute a final order upon which a proceeding in error may be predicated.
ERROR to the Court of Appeals of Stark county.
Defendant in error, L.E. Schauer, was plaintiff, and plaintiffs in error were defendants, in the court below, and will be referred to in that relation.
Plaintiff sued for a balance due upon a written contract and verbal modification thereof. The written contract sued upon required the plaintiff to furnish the material as well as to perform the labor for a certain structure. The verbal contract relieved the plaintiff of the obligation to furnish the brick used in such structure.
Defendants answered, admitting the written contract, admitting the performance thereof by the plaintiff, averring payment, and denying all averments not specifically admitted to be true.
The controversy at the trial centered around the question whether the written contract had been verbally modified. The defendants, without objection, proved that they had paid the Massillon Refractories Company for all the brick used by plaintiff in the performance of his contract. At the conclusion of all the evidence, plaintiff moved the court to direct a verdict in his favor upon the ground that proof of payment by the defendants to the Massillon Refractories Company did not tend, under the pleadings, to prove payment to the plaintiff.
The attention of the defendants was thus for the first time called to the fact that the proof tended to support an accord and satisfaction rather than a payment as pleaded.
The motion to direct a verdict was overruled, and the defendants immediately moved for permission to amend their answer to conform to the proof; that is, to show that the payment to the Massillon Refractories Company was made in pursuance to an agreement with the plaintiff, which motion was also overruled, and the cause proceeded to argument.
After argument the court withdrew the case from the jury, stating his reasons therefor, which he afterwards embodied in the journal entry as follows:
"The jury having been duly impaneled and this cause proceeding to trial upon the issues joined upon the pleadings and the evidence, and the parties having rested, and the plaintiff having moved for a directed verdict in his favor, which was overruled, and the defendants then moving the court to open up the case to permit them to prove the payment for brick to the Massillon Refractories Company at the instance and request of the plaintiff, to be credited upon this contract, and the plaintiff objecting thereto, and it further appearing to the court that in the interests of justice the defendants should now have opportunity to present their claim now made in a proper manner, and that to do so would be unjust and unfair to the plaintiff at this time under the pleading of payment and the plaintiff objecting to the amendment of the answer and to such evidence.
"Therefore, the court, after arguments of counsel and before proceeding to charge the jury, after further consideration thereof reconsiders said motion and now sustains the motion of the defendants for leave to amend, and it is the order of the court that the juror, John Souers, be withdrawn from the panel and the other jurors discharged and that this cause be continued at the costs of the defendants; the defendants are ordered to pay the costs before they will be permitted to amend their pleadings herein. Upon payment of costs the defendants may then file an amended answer herein so that the issues may be properly joined, in accordance with the facts as now presented and claimed at this time to the court, which are not proper and admissible under the pleadings as they now stand. It appearing to the court that such action should be done in order to properly present the issues of fact and in the furtherance of justice between the parties now before the court, to all of which the plaintiff excepts, which exceptions are allowed."
Error was prosecuted to the Court of Appeals by the plaintiff, which court reversed the order of continuance and entered final judgment for the plaintiff below. Error is prosecuted here.
Messrs. Amerman Mills, for plaintiffs in error.
Messrs. Burt, Kinnison, Carson Shadrach, for defendant in error.
This case presents the troublesome question of the discretion of the court in ruling upon a motion for a directed verdict.
Unquestionably, where the evidence responds to the issues made by the pleadings, and no showing is made or developed by the trial for not indulging the presumption, that is otherwise indulged, that the parties have presented by the evidence introduced all the facts pertinent to the controversy, it is the absolute duty of a court, upon determining that there is no evidence tending to prove plaintiff's cause of action, or no evidence tending to prove defendant's affirmative ground of defense, as the case may be, to sustain such a motion.
On the other hand, where a showing is made, or it appears from the trial or some incident of the trial that such an assumption would do violence to a reality and that justice would be defeated by the direction of a verdict, the court has a sound discretion, in the furtherance of justice, to overrule such motion and to afford to the parties an opportunity, by further pleading or by further evidence, to do that which at the end of every trial they are presumed to have done; that is, to have pleaded such facts and introduced at the trial such evidence as they are able to secure, or so much thereof as they regard as necessary and pertinent to an understanding and determination of the controversy.
While statutes are enacted and rules of law are evolved to enable courts to administer justice according to law and not according to the conscience of any particular individual who chances for the time being to function as a court, the machinery so created for the purpose of accomplishing justice will not be so operated as to defeat its own purpose.
Where, therefore, in the instant case, the trial court reached the conclusion that the defendants, through a misconception of the effect of their pleading, had without objection introduced evidence to the effect that they had paid the Massillon Refractories Company for material which, under their written contract with the plaintiff, he was to furnish, and had introduced such evidence as proof of payment to the plaintiff, and under the pleadings such evidence did not tend to prove such payment, but by an amendment to the pleadings it could be credited upon the sum due him, and that it had been offered for that purpose, he had a sound discretion, in the furtherance of justice and to prevent a snap judgment, to overrule the motion and permit an amendment to the answer of the defendants to make the pleadings conform to the proof.
While the logical order of the proceeding to accomplish that result would have been for the defendants to have made a motion for such leave prior to the ruling of the court upon the motion for a directed verdict, however, since by Section 11363, General Code, power is conferred upon the trial court to sua sponte amend a pleading, or to require an amendment thereto, the order of the presentation of the several motions in the instant case is not significant.
The necessity for the continuance of the case grew out of the fact that the plaintiff objected to an amendment to the answer and the fact that the evidence upon the subject of payment, which had been irrelevant and immaterial prior to the amendment, became by the proposed amendment relevant and material; and, since the plaintiff had offered no evidence to controvert the same, an opportunity had to be afforded him to meet and refute, if he could, the evidence thus made relevant and material, to prevent the inuring of an unfair advantage to the defendants by reason of the amendment.
Had a state of facts existed whereby the duty of the court to direct a verdict became absolute, then a refusal to so direct would have constituted a final order, preventing a judgment upon which a proceeding in error could have been predicated; but where the overruling of such a motion is for the purpose of enabling an amendment to the pleading, conforming it to the evidence, or for some other good cause appearing to the court by the whole trial or some incident thereof, or by showing made, the court may in the furtherance of justice exercise a sound discretion and amend the pleading, or reopen the case, or both; and, that no advantage may inure to either party over the other by reason thereof, if the situation in his judgment requires it, he may withdraw a juror and continue the case. Neither the overruling of the motion to direct a verdict under the circumstances of this case, nor the withdrawing of a juror and the continuing of the case to another term, constituted a final order upon which a proceeding in error could be predicated. The rights of the parties were never adjudicated in the trial court, and the case was pending there for trial when the Court of Appeals attempted to exercise jurisdiction in error.
Judgment reversed and cause remanded.
MARSHALL, C.J., KINKADE, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.