State Ex Rel. Blythe v. Trimble , 302 Mo. 699 ( 1924 )

ON MOTION FOR REHEARING. Counsel for respondents earnestly insist that the refusal of the trial court, at the close of the evidence for plaintiff, to permit the relators (defendants in the trial court) to file an amended answer pleading that the plaintiff, administrator of the estate of A.B. Woolston, prior to the trial, had filed his final settlement and had been discharged, was a matter within the sound discretion of the court and not reviewable on appeal. They refer to the statement of the trial court (251 S.W. l.c. 149) in which the learned judge,inter alia, said:

"Therefore the court is in the position here; if I permit this answer to be filed under my notion of the case, I will have and I will be compelled to abate the suit; that would follow. Therefore it comes down to a matter of pure and simple discretion. This amendment is not an amendment that goes to the merits of the case; has nothing to do with the justice between these parties or adjudicating their rights . . . In view of the fact that, if I refuse this answer to be filed, the case automatically goes on, and the case will be tried and tried out on the issues, and decided on its merits. On the other hand, as I said, if I permit it to be filed, then it follows inevitably that the case must abate, . . . Therefore the court will not grant leave to file the amended answer."

I. Our decisions on the right to amend a pleading to conform to the facts proved are so numerous and uniform that we did not discuss them in our opinion, but as counsel insist that the privilege of amendment is discretionary and is not subject to review on appeal, we will refer to some of our decisions.

Respondents call attention to Beattie Mfg. Co. v. Gerardi, 214 S.W. 189; Levels v. Railroad Co., 196 Mo. l.c. 614, and Dudley v. Railroad Co., 238 Mo. 184, cited and considered by the Court of Appeals. [See also Gross v. Watts, 206 Mo. 392.] In neither of these cases was the amendment offered to be made to conform the pleading to the facts proved. In the Dudley Case, VALLIANT, J., said, on page 186:

"It has been held that an amendment may be made after the close of the evidence ``to conform to the proof.' [Baltis v. Friend,90 Mo. App. 408.] This amendment was asked and granted on that ground, ``to conform to the proof.' But there was no proof in the case to form a pretext for the amendment . . ."

The opinion of the Court of Appeals states that George A. Woolston on the day of the trial, February 12, 1918, filed an amended petition "alleging that he had been appointed and was then the duly qualified and acting administrator of the estate of Alfred B. Woolston. At the close of the plaintiff's case, defendant suggested and proved that on April 4, 1917, the plaintiff filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston."

It does not appear from the opinion that any objection was made to the admission of this evidence, nor is there any contention that the administration had not been closed and the administrator discharged more than ten months before the second amended petition was filed or that the action should not have abated. The contention now is that the proof was not admissible under a general denial and that the discretion of the court in refusing to permit the defendants to file an amended answer at the trial, pleading the final settlement and discharge of the administrator to conform to the facts proved, is not reviewable on appeal. It is undoubtedly true that if the defendants intended to deny the appointment of plaintiff as administrator the answer should have specifically denied the alegations of the petition in that respect. Until such allegation was specifically denied, plaintiff was not required to prove his appointment. [Levels v. Railroad, supra, l.c. 614.] But our attention has not been called to any decision of this court holding that under a general denial the final settlement and discharge of the administrator may be shown. We have held that any fact, the effect of which is to show that an essential statement in the plaintiff's cause of action is untrue, may be proven under the general denial and therefore should not be specifically pleaded. [Bolton v. Mo. Pac. Ry. Co.,172 Mo. 102.] At common law, where an administrator or executor pending suit resigns, is removed or discharged, this fact must be brought to the knowledge of the court by a plea in abatement puis darrein continuance, or a judgment rendered against defendant will bind him. [24 C.J. 832, sec. 2091.]

The learned opinion states that upon proof of the discharge of the administrator, the defendants moved the court to abate the action because George A. Woolston was not then such administrator; that said motion was overruled, whereupon the defendants asked leave to amend their answer by setting up said facts. Is the learned opinion of the Court of Appeals, in holding that the trial court committed no error in refusing to permit the defendants to amend their answer to conform to the facts proved, in harmony with the controlling decisions of this court?

In Montgomery v. Mo. Kan. Inter. Ry. Co., 289 Mo. 288,233 S.W. 189, it was held that the trial court abused its discretion in striking out an amended petition and the judgment was reversed. WALKER, J., on page 304, said:

"While the power of the courts in regard to the amendment of pleadings had its origin in the common law, this power has been given legislative recognition in many states, the effect of which is to amplify and liberalize the courts' rulings in that regard, limited only by sound judicial discretion applicable to the facts in each particular case.

"The statute of this State authorizing such amendments is exceedingly liberal and provides that: ``The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.' [Sec. 1274, R.S. 1919.]

"The liberal trend of this statute prompts epigrammatic interpretation of same that the rule is to allow amendments; the exception to refuse them; and that the court should not be less liberal in the construction of the statute than it is in its declarations. [Corrigan v. Brady, 38 Mo. App. l.c. 657; House v. Duncan, 50 Mo. 453; Lottman v. Barnett, 62 Mo. 159; Ensworth v. Barton, 67 Mo. 622; Carr v. Moss, 87 Mo. 447.]"

In Price v. Hallett, 138 Mo. 561, 574, GANTT, J., said:

"Had a timely objection been made when this evidence tending to show an estoppel was offered as against Benecke, it would have been excluded, or the court would have permitted an amendment pleading such estoppel, but no such objection appears to have been made at that time and now that the evidence has been heard and the instruction given upon it, we think it is too late to raise the question of pleading on that point. We shall treat the record now as if the amendment had been prayed and permitted. [Baker v. Railroad, 122 Mo. 533; Darrier v. Darrier, 58 Mo. 222.]

"It has been held in New York under the code that where an amendment to a pleading might have been ordered by the court on trial it may even be amended on appeal so as to conform to the proofs."

In Newham v. Kenton, 79 Mo. 382, it was held that if a state of facts not pleaded is developed at the trial the pleadings should be amended. At the foot of page 385, PHILIPS, C., said:

"In Harris v. Railroad Co., 37 Mo. 310, WAGNER, J., with emphasis, said: ``The statute permits a party to amend his petition after his evidence has been given, to make it conform to the proofs; but no such thing was attempted in this case.'"

In Carr v. Moss, 87 Mo. 449, HENRY, C.J., said:

"When the application was made by plaintiff to amend the petition, no final judgment had been rendered. Testimony had been taken, but the court ordered the referee to take none, and before additional evidence was taken by him, the plaintiff made his application to amend his petition to make it conform to the facts proved. The grounds stated in the motion show that they were not frivolous, but that they went to the merits of the controversy. The statute in relation to amendments is liberal, and the courts should be, at least, as lenient and liberal, in such matters, as the statute.

"We are not disposed to interfere with the trial courts in the exercise of the discretion with which the statute has invested them, except where there has been a manifest abuse of that discretion, and where, before final judgment, an amendment of a petition is asked, in order that the plaintiffs may have such redress as the proof taken may show him entitled to, we think it an abuse of the discretion given to the court to refuse it. [Anderson, Admr., v. Hance, 49 Mo. 159.] We are not to be understood as reflecting upon the circuit judge, who acted, no doubt, as he thought his duty required, but we entertain a different opinion of his duty from that which seems to have influenced his action."

Amendments are favored and should be liberally allowed in furtherance of justice. [House v. Duncan, 50 Mo. 453, cited approvingly in Wright v. Groom, 246 Mo. 163. See also Broyles v. Eversmeyer, 262 Mo. 384, 171 S.W. 334, and Kregain v. Blake,239 S.W. 495, 498-9.] The evidence that the plaintiff had been discharged as administrator disproved an essential allegation in the second amended petition; the amendment did not change substantially the defense, but simply conformed the answer to the facts proved. We think the opinion of the learned Court of Appeals in this respect is in conflict with the controlling decisions of this court.

In the argument in support of the motion for rehearing, counsel say we are in error in stating that the death of A.B. Woolston was suggested and the cause was revived on the day the second amended petition was filed; that in fact the order reviving the cause was made several months before the filing of the amended petition. Counsel do not say it was made before the administrator made his final settlement and was discharged. If it was made before his discharge the statement, in our opinion, that the order of revival was without warrant and unauthorized by the statute, should be withdrawn. The date of the revival of the cause is not shown either in the opinion of the Court of Appeals or in counsels' argument. The statement that the cause was revived several months before the filing of the second amended petition is evasive. The matter, however, is unimportant.

II. Respondents insist "there is not and cannot be any causal connection between the wrongful procuring of an injunction preventing the repairing of a levee and the independent, separate tort of other persons in diverting the waters of a living stream upon the person enjoined." Again: "Relators attempt to draw the inference from the opinion of the Court of Appeals that Moore and relators were acting in concert in diverting Sugar Creek. There is nothing in the opinion upon which this statement can be mantained. The opinion states that relators timed their acts with reference to the time of the procuring of the injunction by Moore, but there is no word in the opinion that Moore was any party to this arrangement on the part of relators. To the contrary, the conclusion to be drawn from the opinion is this that the Court of Appeals found that Moore was in no way connected with the act of relators in diverting the stream." They further say that whether or not the procuring of the injunction order was the proximate cause of the damage was a question for the determination of the Court of Appeals and not of this court. The opinion states: "Woolston was not permitted to repair the levee during the pendency of the injunction suit and no doubt he could have recovered in that suit for damages, if any, resulting to him by reason of such prevention, but he could not recover any damages against the defendants in the case at bar for the reason that they were not parties to the suit and, as before stated, this cause of action is for damages caused by their acts alone." The foregoing statements, in the main, are plainly conclusions of law.

The statement that the damages sued for were caused solely by the acts of the defendants is also a mere conclusion and inconsistent with the particular facts stated in the opinion. The learned opinion (251 S.W. l.c. 148) states:

". . . that in the spring of 1908 Woolston commenced to repair this break in his levee, but before he could complete this work he was stopped by a temporary restraining order instituted in the name of B.F. Moore. At the trial this temporary injunction was dissolved. The appellants herein were sureties on Moore's injunction bond.

"A week or ten days before the injunction suit was filed and the injunction served, defendants agreed among themselves to cut the willows from the creek bank to Woolston's land. The time fixed for this work was the day after the service of the order of injunction.

"On the day Woolston was notified of the injunction, defendants herein and their employees appeared on ``No Man's Land,' and began cutting a swath through the willows. . . . . There was no water running into the swath at that time. A substantial wire fence was upon the east line of Woolston's land. Where the cut swath encountered this fence, the fence posts were cut off even with the ground, the wire cut, and the section thereof so cut was swung backward and the banks of the creek at that point cut down to the height of the levee. All this was accomplished within two or three days after the injunction was served. The record further discloses that a few days after this there came a freshet, the bank broke," etc.

From the particular facts as above stated, it is apparent that a court or jury might infer that Moore and the sureties on his bond were acting in concert. But whether the relators were acting independently or in concert with Moore, we think is immaterial. No doubt the wrongful acts of the defendants increased the flow of water through the crevasse in the levee, but from the facts as stated in the opinion of the Court of Appeals it is clear that the loss of the use of the farm resulting from the injunction could not be separated from that caused by the acts of the defendants. In fact, it is apparent that if Woolston had repaired the crevasse in the levee his farm would not have suffered by the acts of the defendants. The injunction restrained him from doing this.

In paragraph 2 of the opinion, we showed by reference to numerous decisions that the contention that there can be no causal connection between the procuring of the injunction and the independent tort of the relators is directly opposed to the controlling decisions of this court. "A person who has done any part of a wrong working harm to another, or even contributed his will to it, is responsible to him in damages for the entire harm, however many other individuals, forces and things may have co-operated in bringing about the mischief." [Neff v. Cameron,213 Mo. 350, 360, and other cases cited.]

In Newcomb v. N.Y. Railroad Co., 169 Mo. 422, it was said:

"A defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God or with an inanimate cause, and became a part of the direct and proximate cause although not the sole cause.

"Thompson on Negligence, volume 1, section 75, thus states the rule: ``If the concurrent or successive negligence of two persons, combined together, result in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. Thus, A leaves his horse and cart standing in the street, without any person to watch them, and a passer-by strikes the horse, in consequence of which damage ensues. A is answerable for such damage. An omnibus overturns, precipitating a passenger into the lock of a canal. A third person, for whose acts the proprietor of the omnibus is not responsible, lets the water into the canal, in consequence of which the passenger is drowned. The proprietor of the omnibus must pay damages for the death of the passenger. This is also illustrated by that numerous class of cases where travelers are injured by reason of defects in highways. As elsewhere seen, the traveler may maintain an action either against a municipal corporation, or against the private wrongdoer who caused the defect; and the municipal corporation, if compelled to pay damages, may maintain an action against the private wrongdoer for reimbursement. Consequently, a defendant, whose negligence was a procuring cause of an injury, cannot excuse his negligence by setting up the concurring negligence of a third person. For example, where A negligently placed on a sidewalk an iron post, used as a barber's pole, and B negligently backed his wagon against it, whereby it was knocked over, striking C and injuring him, it was held that the negligence of A did not prevent C from recovering damages of B. So, if through the negligence of a railway company, the employee of another company receives an injury, the fact that the negligence of other employees of the latter company, who were fellow-servants with the injured employee, also contributed to the injury, does not relieve the former company from liability.'"

Again, on page 426:

"Bishop on Non-Contract Law, section 518, gives the reason underlying the rule as follows:

"``Sec. 518. The fundamental doctrine is, that, since the habitations and life of man are in the midst of constantly active forces in nature, and his necessities compel him to be perpetually active also, it is not possible in jurisprudence, nor would it be just, to limit one's responsibility for harm inflicted on another through his acts, to the particular injuries whereof those acts are the sole cause. Indeed, a sole cause is a thing seldom found in our complicated world. Nor would it be practicable, nor yet is it demanded by any principle of justice, to take into the account all the combining causes of an injury, and charge the author of each cause with simply his proportion of the damage. Therefore, the rule of the law is, that a person contributing to a tort, whether his fellow-contributors are men, natural or other forces, or things, is responsible for the whole the same as though he had done all without help. The limit to this rule, in civil jurisprudence, is simply what is required by another rule; namely, that ``the injured person is only entitled to one compensation.'" [See also Wright v. K.C. Terminal Ry. Co., 195 Mo. App. 484, and cases cited.]

In Carr v. Auto Supply Co., 293 Mo. 568, 239 S.W. 827, the court said:

"Instruction number two given by the court at the request of the plaintiff, clearly and distinctly told the jury that if the defendant's chauffer failed to give the statutory signal of his intention to turn across the street to the left in front of the automobile in which plaintiff was riding, and that such failure, either solely or in conjunction with the condition of the street at such point, and the act of the chauffer in charge of the automobile in which plaintiff was riding, in turning said automobile to the left, caused the automobile in which plaintiff was riding to be overturned and plaintiff to be injured, then their verdict should be for plaintiff. This distinctly embodied the doctrine of concurring negligence which is recognized in this State, as well as in nearly every other jurisdiction in which the doctrine of the English common law with reference to liability for negligence prevails. It is stated in Shearman and Redfield on Negligence (6 Ed.) sec. 122, as follows:

"``Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.'

"It has been approved and enforced in this State in many cases among which are the following: Hickman v. Union E.L. P. Co., 226 S.W. 571; Vessels v. K.C.L. P. Co., 219 S.W. 80; Campbell v. United Railways, 243 Mo. 141; Kreymeyer v. Transit Co., 220 Mo. l.c. 655; Straub v. St. Louis, 175 Mo. 413; Brennan v. St. Louis, 92 Mo. 482; Donoho v. Vulcan Iron Works, 75 Mo. 401; Newcomb v. N.Y. Railroad Co., 169 Mo. 409; Bassett v. St. Joseph,53 Mo. 290; Vogelsang v. St. Louis, 139 Mo. 131; Harrison v. K.C. Electric Co., 195 Mo. 606."

On the facts stated in the opinion, whether defendants acted independently of or in concert with Moore, was a question of fact. They were jointly and severally liable for all the damages resulting to Woolston from the loss of the use of his farm by the overflow thereof during the pendency of the injunction. The learned opinion, in announcing a contrary conclusion and in approving the instruction referred to in paragraph 2 of our opinion, is directly in conflict with the foregoing controlling decisions of this court. The motion for rehearing and to transfer this cause to the Court in Banc are overruled. Railey, C., concurs.