Patton v. Pittsburgh, Cincinnati & St. Louis Railway Co.

Mr. Justice Trunkey

delivered the opinion of the court, November 22d 1880.

In answer to the plaintiffs’ third point the jury were unqualifiedly instructed that this action can be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence, is similiar to or substantially the same as the statute on the same subject in Pennsylvania. The only statute of West Virginia given in evidence, is the fifth and sixth sections of an act relating to actions where death of a person was caused by wrongful act, neglect or default, which provides, among other things, that “ every such action shall be brought by and in the name of the personal representative of such deceased person ; and the amount recovered in every such action shall be distributed to the parties, and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate.” What the law provides in relation to said distribution was not proved. The learned judge in the charge said it was his impression that the statute in West Virginia was so different from the statute in this state that the action would not lie ; but instructed the jury that the fact of Mr. Patton having been killed in West Virginia made no difference so far as they were concerned. At the close of the charge he adds these words: “The question of law, as to the effect of the statute of West Virginia, we will reserve for further consideration.” The verdict was for the plaintiffs for $4900, “ subject to the opinion of the court on a question of law reserved.” In an opinion subsequently filed two questions of law are considered as having been reserved, 1. Can the plaintiffs recover under the West Virginia statute, and 2. Is there sufficient evidence of negligence to justify a verdict against the defendant ?” Neither of these are shown by the record. Of the first it is said, “ I do not think the statutes are substantially alike. In this state the right of action by our statute is in the widow and children, or parents. In the West Virginia statute, the right of action is in the administrator. We think this is decisive of the question; and as the action is by the widow and children, it cannot be maintained.”

Before the argument of the question a motion had been made for amendment by adding the name of the administratrix as legal plaintiff, for use, in the writ, record and pleadings, and at present will be considered as having been allowed. If it were material to determine whether the statutes were substantially alike, it was for the court; but it was submitted to the jury to determine, and if they were, it was ruled that the action could be maintained. Neither the fact nor question of law set forth in plaintiffs’ third point was reserved. The verdict was as indefinite as the remark at the close of the charge. Every reservation of a question should place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises: Ferguson v. Wright, 11 P. F. S. 258 ; Wilde v. Trainor, 9 Ibid. 439. All the legal propositions had been absolutely ruled. And what was distinctly stated in the so-called reservation ? It may be conceded that the court intended the precise question subsequently stated in the opinion, but the record does not show that. On the contrary, it shows that question was affirmed, if the jury found the two statutes substantially of the same import. Judgment might be entered upon the verdict, but in most cases which have been reviewed in this court when the point was not well reserved, the cause has been sent back for another trial. A judgment upon this verdict for the reason that the record shows no definite point on which the verdict depends, is not what was intended.

The record reveals nothing of what is called the second reserved question. It is error to submit a fact to the jury and after its finding enter judgment for the defendant on the ground that the evidence was insufficient to establish it: North American Oil Co. v. Forsyth, 12 Wright 291.

After verdict and before judgment the plaintiffs moved to amend by adding the name of the legal plaintiff, which was refused. The 'cause had been tried and the evidence, under the instructions, warranted the verdict. In all actions, in any stage of the proceedings, the courts have power to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party. Act 1852, P. L. 574, sect. 2. It very clearly appeared there was a mistake in omitting the name of the administratrix of William Patton, deceased, for the statute under which the action was brought directed it should be by and in the name of the personal representative. Legislation and adjudication have favored amendments to the end that causes may be speedily tried on the merits, or when so tried that the result shall be preserved. Thus, the act of 1872, P. L. 25, provides that no verdict shall be set aside for defectiveness or indefiniteness in its form, or by reason of the want of a declaration or plea, but the court shall have power at any time to direct the filing of a declaration, the entering of a plea, or filing a'description if in ejectment, as shall make the pleadings and record conform to what was tried before the jury and found by the verdict. Under the act of 1852 the courts have power, in any stage of the proceedings, to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside where there has been a full trial upon the merits and the formal addition of a party will cure the defect in the record. When the amendment is a formal one, introducing no new or different cause of action, depriving the'opposite party of-no substantial right, and which ought to have been made in the court below, it will be considered in this court as having been made. Fritz v. Heyl, 8 W. N. C. 874. This case was tried just as if the legal plaintiff had brought suit and was upon the record, and the amendment ought to have been allowed. When it was moved a year had not elapsed from the date . of the decedent’s death. It was within the terms of the statute, prejudiced the rights of no one, and if the trial was free of error, it would have saved the verdict. Were nothing else in the way of entering judgment upon the verdict we would treat the motion as having been granted, but as the cause goes back to the Common Pleas the amendment will there be made nunc pro tuno.

The important question to the plaintiffs, whether this action can be maintained in Pennsylvania, is not and cannot be raised by them for decision, upon the record as it comes; aud we expressly exclude an inference, from the disposition of the assignments of error, that we are of opinion that the action will lie..

Judgment reversed and venire facias de novo awarded.