Evans v. Byrolly Transportation Co. , 124 Conn. 10 ( 1938 )

The plaintiff appeals from the denial of her motion to set aside the verdict for the defendant and from the judgment, alleging error in the charge, in refusing to include in the finding certain claims of proof and in denying her motion to amend the complaint. No evidence is printed and the appeal from the denial of the motion to set aside the verdict is therefore not pursued. The principal question in the case concerns the ruling on the amendment.

The allegations of the complaint were that, as the truck was proceeding up Southington Mountain it became "stalled or stopped and remained stationary" upon the traveled portion of the highway; that the car in which the plaintiff was riding ran into the rear of the truck because of the negligence of its driver "in allowing said truck to remain stationary on the highway without lights;" that the operator was negligent in that he "operated and maintained" the truck "without lights" in the rear; that "stopping and parking" it on the traveled portion of the highway constituted a dangerous obstruction; and that "the maintenance" of the truck on the highway without flares, lanterns or signals of any kind or without moving it off the traveled portion of the highway onto the shoulder constituted a nuisance. The plaintiff's claims of proof as stated in the finding, as well as her requests to charge, show that the case was tried by her on the theory that the truck was stationary on the highway. The defendant's claims of proof indicate that the truck was moving at the time of the collision. The finding clearly shows that the basic question of fact in issue was whether the truck was moving or stationary. The jury in their answer to interrogatories found that the truck was in motion at the time of the collision.

After the evidence was closed and the arguments had been completed, the trial court inquired of counsel for the plaintiff whether he claimed the truck was stationary or moving, stating that in the argument only one "desultory mention" had been made of the claim that the truck was in motion. In reply, counsel for the plaintiff, while claiming that the wording of the complaint was broad enough to apply to a moving truck, requested permission to amend the complaint by the insertion of the words "or at very slow speed." Counsel for the defendant objected to the allowance of the amendment on the ground that the plaintiff had early notice that the claim that the truck was moving would be made and because the request came too late and stated that if permission to amend was granted, he wanted to comment to the jury thereon. Counsel for the plaintiff objected to any comment by counsel for the defendant. Thereupon the court denied permission to file the amendment on the ground that the request came too late under the circumstances, pointing out that the arguments were completed and that the claim that the car was in motion had not been argued by the plaintiff.

Amendments are freely allowed by statute, General Statutes, 5541-5550; by rule, Practice Book, 96, and by practice, Clayton v. Clayton, 115 Conn. 683,685, 163 A. 458. "The action of the court in permitting amendments is discretionary and can be reviewed only when the discretion has been abused." Masi v. General Ice Cream Corp., 120 Conn. 259, 264,180 A. 455. The same is true of action disallowing amendments. Bristol v. Pitchard, 81 Conn. 451, 453,71 A. 558; Shelinsky v. Foster, 87 Conn. 90, 94,87 A. 35; Perdue v. Zoning Board of Appeals, 118 Conn. 174,180, 171 A. 26. Amendments should be made seasonably. Mazziotti v. DiMartino, 103 Conn. 491,492, 130 A. 844.

The case has been tried on a theory diametrically opposed to that offered in the amendment. The finding shows that the evidence and argument of the plaintiff were directed to prove that the truck was stationary. The case was ready for the charge. Counsel for the plaintiff refused to consent to further argument by the defendant. Under these circumstances we cannot say that the court abused its discretion in disallowing the amendment.

The plaintiff claims that the complaint as drawn can be interpreted to mean that the truck was in motion at the time of the collision. Many definitions of "operate" and "maintain" have been culled from the cases and the dictionaries to substantiate her claim. Most common words are used in different senses according to the context in which they appear. State v. Ferrone, 97 Conn. 258, 263, 113 A. 452. The wording of the complaint and the procedure thereunder by the plaintiff have irrefutably placed her own interpretation on those words. That interpretation is that the truck was stationary at the time of the collision and that fact was the cause of the accident.

The assignments of error addressed to the charge all relate back to the interpretation of the complaint. The interpretation of the complaint by the court, as has been shown, was correct. It follows that proof by the plaintiff that the truck was stationary was a necessary condition to her recovery and that the court was right in so informing the jury. Epstein v. Blumenthal Co., Inc., 114 Conn. 195, 199,158 A. 234. Since the claim of nuisance was predicated upon the theory that the truck was stationary and since the jury found affirmatively that it was moving, it is unnecessary to discuss the assignments of error directed to the charge on nuisance.

There is no error.

In this opinion the other judges concurred.