Metcalf v. Mellen , 57 Utah 44 ( 1920 )

FEICK, J.

I concur. I base my concurrence upon the ground, however, that the complaint states a cause of action in tort based upon the negligence of appellant, J. W. Mellen. The negligence consisted in appellant’s failure to warn the public against using the highway at the point of the accident. The law imposed upon him that duty. The fact that the duty was also imposed by the contract with the state in no way affected the duty imposed by law. In view that it is clear from the record that the accident was caused through the negligence aforesaid, and that the jury must have so found, the introduction in evidence of appellant’s contract with the state could not have resulted in prejudicing his rights.

I am also of the opinion that the court did not err in permitting plaintiff to amend his complaint in increasing the amount of damages claimed. The plaintiff, as assignee, possessed all of the legal rights of the assignors, and it certainly would not have been an abuse of discretion, if the assignors had been permitted to amend their complaints, if they had personally prosecuted the actions.