that the negligent act was that of the servants of a corporation would seem unnecessary; the fact that the negligence was that of a servant being sufficiently covered by an allegation that the defendant was guilty of the negligence charged.185 Where, however, the pleader desires more fully to cover this phase of his case, an averment that defendant, acting through its agents, injured plaintiff, will amount to an averment that the injury was inflicted by the defendant acting through its duly authorized agents and servants.188 So, a complaint in an action against a railroad company to recover for personal injuries occasioned by the negligence of a brakeman in leaving a switch open need not allege that the company authorized the misconduct of such brakeman where it alleges in effect that the brakeman was acting in the course of the business of the company.187 § 7479. Allegation of Fact of Consolidation of Corporations after Infliction of Injury.-A complaint against a consolidated railroad company for the tort of one of its predecessors is not demurrable because it does not set forth the articles of consolidation, if it alleges that such predecessor has been consolidated and united with the defendant company, and is now being operated and run and controlled as a part of the railroad of the latter company under such consolidation.188 189 § 7480. Reply-Departure.-A replication setting up wantonness, willfulness, and recklessness in an action for negligence in which the complaint charges simple negligence, is a departure subject to demurrer. Under a code provision requiring a reply only when the answer contains a counter-claim, it has been held that a failure to reply in a personal injury case will not admit allegations of contributory negligence.190 An objection to the admission in evidence of a rule for the government of railroad employés on the ground that it has been abandoned, is unavailing, unless the fact of abandonment is pleaded in reply.1 191 185 Di Marcho v. Builders' Iron Foundry, 18 R. I. 514; s. c. 27 Atl. Rep. 328; Minter v. Union Pac. R. Co., 3 Utah 500; Cramer v. Union Pac. R. Co., 3 Utah 504. 198 Wabash R. Co. v. Savage, 110 Ind. 156; s. c. 6 West. Rep. 298. 187 Gulf &c. R. Co. v. Pierce, 7 Tex. Civ. App. 597; s. c. 25 S. W. Rep. 1052; s. c. aff'd, 87 Tex. 144; 27 S. W. Rep. 60. 134 Ind. 557; s. c. 54 Am. & Eng. R. Cas. 198; 33 N. E. Rep. 367. 189 George v. Mobile &c. R. Co., 109 Ala. 245; s. c. 19 South. Rep. 784; Davis v. Miller, 109 Ala. 589; s. c. 19 South. Rep. 699. 190 Coleman v. Perry, 28 Mont. 1; s. c. 72 Pac. Rep. 42. 191 Alcorn v. Chicago &c. R. Co., 108 Mo. 81; s. c. 16 S. W. Rep. 229; 10 Rail. & Corp. L. J. 10; aff'g s. c. 188 Cleveland &c. R. Co. v. Prewitt, 14 S. W. Rep. 943. § 7481. Intendment after Verdict.-The expression "intendment after verdict" presents a rule by which, if matter which is material is not expressly averred in the declaration, but may be implied from what is expressly stated therein, the defect is cured by a verdict in favor of the party so pleading, on the presumption that he has proved upon the trial the facts insufficiently averred.192 Thus, in an action against a city for injuries caused by falling into an unguarded excavation in a sidewalk, the declaration failed to state that it was a public street and sidewalk, and a thoroughfare, and that it was the duty of the defendant to keep the same in a safe and passable condition. The court held that such facts were necessarily implied from the allegations that plaintiff fell into an opening or excavation in the sidewalk, and that the excavation was negligently and carelessly suffered to be left open and unguarded by the defendant city, and therefore the defect was cured by a verdict in the plaintiff's favor.193 So, in an action against a railroad company for a death caused by the negligence of those in charge of a train of another company run upon its tracks, the failure of the declaration to state that the train was there under a contract with the defendant has been held cured by a verdict.194 The duty of a municipality to keep its streets. in repair will be presumed by virtue of this doctrine, without any express allegation to this effect.195 On the contrary, the omission toallege, in an action against a common master for injuries from the alleged negligence of defendant's servants, that they were not plaintiff's fellow servants, has been held not cured by verdict.196 Likewise, the defect in a petition against a railroad company, for causing the death. of plaintiff's minor son while in defendant's employ without plaintiff's consent, which fails to allege defendant's knowledge of decedent's minority, has been held not cured by verdict or judgment for plaintiff, nor waived because a demurrer was not addressed to it.1 197 192 Cribben v. Callaghan, 156 Ill. 549; s. c. 41 N. E. Rep. 178; aff'g s. c. 57 Ill. App. 544; Cotes v. Davenport, 9 Iowa 227; Louisville v. Snow (Ky.), 54 S. W. Rep. 860; Read v. Chelmsford, 16 Pick. (Mass.) 128; Bowie v. Kansas City, 51 Mo. 454; Mount Adams &c. R. Co. v. Wysong, 8 Ohio C. C. 211; Mangum v. Bullion &c. Min. Co., 15 Utah 534; s. c. 50 Pac. Rep. 834; Holden v. Rutland, 30 Vt. 302; Noyes v. Turnpike Co., 11 Vt. 536; Hill v. New Haven, 37 Vt. 501; Matthews v. Baraboo, 39 Wis. 674. In an action by an employé to recover for injuries sustained by a fall through an uncovered hatchway, the plaintiff's omission to al lege that defendant negligently left the opening uncovered is cured by a verdict in his favor where the issue joined required proof of such fact: Pullman Palace Car Co. v. Connell, 74 Ill. App. 447. 103 Bowie v. Kansas City, 51 Mo. 454. 194 Pennsylvania Co. v. Ellett, 35 Ill. App. 278. 105 Mechanicsburg v. Meredith, 54 Ill. 84. 106 Joliet Steel Co. v. Shields, 134 Ill. 209; s. c. 25 N. E. Rep. 569; rev'g s. c. 32 Ill. App. 598. 197 Gulf &c. R. Co. v. Vieno, 7 Tex. Civ. App. 347; s. c. 26 S. W. Rep. 230. $7482. Amendment of Defective Pleadings.-In the matter of amendments of defective pleadings, the code is most liberal, and authorizes the allowance of such amendments in the discretion of the court, where the amendment does not introduce a new cause of action into the case,' 198 and the amendment is in furtherance of justice.199 A Michigan statute permits amendments "in sub 199 See, generally, Highland Ave. &c. R. Co. v. Sampson, 112 Ala. 425; s. c. 20 South. Rep. 566; Rome R. Co. v. Barnett, 89 Ga. 718; s. c. 15 S. E. Rep. 639; Wayne Co. Turnpike Co. v. Berry, 5 Ind. 286; Purcell Mill &c. Co. v. Kirkland, 2 Ind. Ter. 169; s. c. 47 S. W. Rep. 311 (amendment by stating that employment was special and complaint originally averred general employment); Brown v. Owosso, 130 Mich. 107; s. c. 89 N. W. Rep. 568; 8 Detroit Leg. N. 1145; Richmond v. Second Ave. R. Co., 9 Misc. (N. Y.) 355; s. c. 60 N. Y. St. Rep. 629; 29 N. Y. Supp. 588; Briggs v. Calender &c. Co., 23 R. I. 359; s. c. 50 Atl. Rep. 653; Olsen v. Burlington &c. R. Co., 12 S. D. 326; s. c. 81 N. W. Rep. 634; North Side Street R. Co. v. Want, 4 Tex. App. Civ. Cas. 238; s. c. 15 S. W. Rep. 40; Missouri Pac. R. Co. v. Ivy, 79 Tex. 444; s. c. 15 S. W. Rep. 692; On the trial of an action against a city for personal injuries, it is not error to permit the complaint to be amended, so as to allege that notice of intention to sue was given to the corporation counsel as required by N. Y. Laws 1886, p. 801, ch. 572: Shaw v. New York, 83 App. Div. (N. Y.) 212; s. c. 82 N. Y. Supp. 44. See also, Denair v. Brooklyn, 25 N. Y. St. Rep. 1014; s. c. 5 N. Y. Supp. 835. A declaration by a railroad track-hand alleging that he was injured by a fall of earth caused by the company's negligence is amendable by setting out the particulars of such negligence, and by averring that the plaintiff was without fault: Smith v. Georgia R. &c. Co., 87 Ga. 764; s. c. 13 S. E. Rep. 904. Amend ments to a declaration for personal injuries sustained in a railroad crossing collision, in addition to a restatement of the defendant's failure to ring a bell or lower gates, which aver that a plank projecting from a car struck plaintiff, do not allege a new ground of negligence, although one of the counts charges that the plank was carelessly and negligently placed, since the allegation is descriptive of the car only, and not of the negligence which caused the injury: Chicago &c. R. Co. v. Reilly, 75 Ill. App. 125. In an action against a turnpike company for an injury sustained in consequence of a defect in a bridge, the court below allowed the plaintiff to amend, on the trial, by the insertion of an averment that he was ignorant that the bridge was out of repair. The court above held that no abuse of discretion appeared upon the record: Davis v. Hill, 41 N. H. 329. A petition against a railroad company alleging that defendant wrongfully broke down plaintiff's fences, may be amended so as to allege that plaintiff's crops growing in the enclosure were thereby left open to the depredation of cattle and other animals running at large, which destroyed part of the crop: Gulf &c. R. Co. v. Richards, 11 Tex. Civ. App. 95; s. c. 32 S. W. Rep. 96; 1 Am. & Eng. R. Cas. (N. S.) 668. An amended petition does not set up a new cause of action where the facts relied on to sustain a recovery are the same in both pleadings, although the amended petition states an action ex delicto, and the original petition was based on an alleged contract: Gulf &c. R. Co. v. Richards, 11 Tex. Civ. App. 95; s. c. 32 S. W. Rep. 96; 1 Am. & Eng. R. Cas. (N. S.) 668. 199 In an action against a city for damages caused by the erection of a viaduct in the street in front of plaintiff's premises, amendments of the complaint, at the trial, striking out causes of action for damage to the fee and for negligence, and amplifying the cause of action for damage to the usable value of the premises, are permissible under N. Y. Code Civ. Proc., § 732, allowing pleadings to be amended at any 202 stance."200 Where the amendment introduces a new element of damages, a continuance should be allowed at the request of the opposite party.201 The amendment may be allowed after the conclusion of the evidence to conform to the proof," or even after the verdict.203 The court under this broad discretion has power to permit plaintiff, by amendment, to increase the ad damnum of the writ.204 So, a complaint to recover damages from the flooding of land by the maintenance of an obstruction may be amended by adding another item of damage growing out of the same overflow; and the defendant is not required to file an additional answer where the original answer is a general denial.205 So, a complaint for personal injuries to a servant from unsafe machinery furnished by the master with which he is unacquainted, may be amended by setting forth the character of plaintiff's employment and the nature and specific defects of the machinery.206 But a declaration for personal injuries against one railway company cannot be amended by substituting another company as the defendant under the guise of correcting a misnomer.207 The failure of a complaint against a foreign corporation to allege the residence of the plaintiff within the State may be cured by amend stage in furtherance of justice: Sauer v. New York, 60 N. Y. Supp. 648; s. c. 30 Civ. Proc. (N. Y.) 232. An amendment of a declaration against a railway company, alleging that plaintiff was ejected from defendant's train while he was a regular passenger, so as to show an ejection from another train controlled by a different train crew and while he was a trespasser on the train, having no ticket for passage thereon, is not erroneous under the Michigan statute permitting amendments "in substance": Brassell v. Minneapolis &c. R. Co., 101 Mich. 5; s. c. 59 N. W. Rep. 426. 201 St. Louis &c. R. Co. v. Power, 67 Ark. 142; s. c. 53 S. W. Rep. 572; Hoffman v. Third Ave. R. Co., 45 App. Div. (N. Y.) 586; s. c. 61 N. Y. Supp. 590. La Barre v. Waterbury, 69 Conn. 554; s. c. 37 Atl. Rep. 1068; Ritchie v. Waller, 63 Conn. 155; s. c. 28 Atl. Rep. 29; Colley v. Gate City Coffin Co., 92 Ga. 664; s. c. 18 S. E. Rep. 817; Goodman v. Kahoka, 100 Mo. App. 278; s. c. 73 S. W. Rep. 355; Lustig v. New York &c. R. Co., 65 Hun (N. Y.) 547; 8. c. 20 N. Y. Supp. 477; 48 N. Y. St. Rep. 916; Mount Adams &c. R. Co. v. Wysong, 8 Ohio C. C. 211; Wild v. Oregon Short Line &c. R. Co., 21 Or. 159; s. c. 27 Pac. Rep. 954; Louisville &c. R. Co. v. Reagan, 96 Tenn. 128; s. c. 33 S. W. Rep. 1050. An answer by an employer setting up incompetency and unskillfulness of an employé suing him for a wrongful discharge may properly be amended to correspond with evidence which is not objected to, by setting up the additional defense of rude and discourteous conduct of plaintiff to customers, injuring the employer's business, where it does not appear that plaintiff will be surprised or his cause injuriously affected thereby: McMurray v. Boyd, 58 Ark. 504; s. c. 25 S. W. Rep. 505. 203 Baker v. Barber Asphalt Pav. Co., 92 Fed. Rep. 117. 204 Graves v. New York &c. R. Co., 160 Mass. 402; s. c. 35 N. E. Rep. 851; Frankfurter v. Home Ins. Co., 6 Misc. (N. Y.) 49; s. c. 55 N. Y. St. Rep. 774; 26 N. Y. Supp. 81. 205 James v. Kansas City &c. R. Co., 69 Mo. App. 431. 20 Carter v. Cotter, 88 Ga. 286; s. c. 14 S. E. Rep. 476. 207 Nashville &c. R. Co. v. Edwards, 91 Ga. 24; s. c. 52 Am. & Eng. R. Cas. 62; 16 S. E. Rep. 347. ment. 208 But a complaint against a railroad company by an employé for injuries alleged to have resulted from the defective construction of a platform on which he was engaged at work, was held not subject to amendment so as to change the cause of action into one against the company as owner of the premises where plaintiff was hurt, and as landlord of plaintiff's employer.209 So, where a complaint for injuries sustained by slipping on ice on a city sidewalk was based on defendant's negligence in failing to keep its streets in a reasonably safe condition for public use, it was held that the plaintiff could not amend the complaint at the trial so as to change the cause of action to one based on the city's maintenance of a nuisance in the shape of a defective leader attached to its abutting building.210 208 Chafee v. Postal Tel. &c. Co., 35 S. C. 372; s. c. 14 S. E. Rep. 764. 209 Central &c. R. Co. v. Williams, 105 Ga. 70; s. c. 31 S. E. Rep. 134; 13 Am. & Eng. R. Cas. (N. S.) 861. 210 Wittman v. New York, 80 App. Div. (N. Y.) 585; s. c. 80 N. Y. Supp. 1022. |