Mid-Central Fish Co. v. Gentry Poultry & Egg Co.

OSBORN, J. This action was instituted in the court of common pleas of Oklahoma county by Gentry Poultry & Egg Company, hereinafter referred to as plaintiff, against Mid-Central Fish Company and James Harrison, hereinafter referred to as defendants, wherein plaintiff sought recovery of damages to its truck resulting from a collision between said truck and a truck of defendant company upon a bridge across the South Canadian river on U. S. Highway No. 81. Defendant filed a counterclaim in which it alleged negligence on the part of plaintiff and damage to its truck. The cause was tried to a jury. A verdict was returned in favor of the plaintiff as against defendant Mid-Central Fish Company, but defendant James Harrison was exonerated by the verdict of the jury in that there was no finding of liability against him. The jury determined that defendant take nothing under its cross-petition. Defendant Mid-Central Fish Company moved for judgment notwithstanding the verdict on the ground that, since its liability was predicated wholly upon the principle of respondeat superior, the exoneration of Harrison, the servant, necessarily resulted in the exoneration of the master. The plaintiff countered with a motion to amend its petition to conform to the evidence, which amendment was permitted. The motion for judgment notwithstanding the verdict was overruled, judgment was entered in favor of plaintiff in the amount of the jury verdict, and the defendant has appealed to this court. The evidence with regard to the cause of the collision of the two trucks upon the bridge was conflicting and presented an issue of fact for the determination of the jury. It appears that at the time of the collision the truck of defendant company was being driven by defendant James Harrison, who was the helper or assistant of one Ernest Coy, the regular driver of the truck, who was riding in the seat with Harrison at the time of the collision. It is conceded by the parties that if a master’s liability is predicated solely on a servant’s negligence, a judgment against the master on a verdict finding against the master and in favor of the servant cannot stand. In this connection see Shell Petroleum Corp. v. Wilson, 178 Okla. 355, 65 P. 2d 173; Consolidated Gas Utilities Co. v. Beatie, 167 Okla. 71, 27 P. 2d 813. As heretofore stated, after the ver-' diet was returned the court permitted an amendment to the petition, which amendment is as follows: *522 “That at all times herein complained of, one Ernest Coy, ’ the regular driver and authorized agent in charge of the operation of the defendant Mid-Central Fish Company’s truck was personally in charge of and in command of said truck. That at the time of said accident complained of the said Ernest Coy, while in command and acting within the scope of his employment, ordered and directed the defendant James Harrison, an assistant helper upon said truck, to drive the same and the said Harrison while acting under the orders and the personal supervision and in the presence of the said Coy, did drive the said truck as in the petition set forth. That being in charge of said truck and being personally present and directing its operation, it was the duty of said Ernest Coy to see that said truck was operated in such a lawful manner and way as to protect the legal right of other persons and their property upon the highways. “The plaintiff "further shows to the court that thereafter the defendant, Mid-Central Fish Company, ratified all of the acts of its agent and supervisor in charge of its truck, Ernest Coy, in its cross-petition filed herein and by the voluntary evidence introduced in its behalf to substantiate its cross-petition at the trial of this case.” Under the provisions of section 251, O. S. 1931, 12 Okla. St. Ann. § 317, the trial court is vested with a wide range of discretion in permitting the amendment of pleadings before or after judgment, in the furtherance of justice, when such amendment does not change substantially the claim or defense thereto. Martin v. McCune, 170 Okla. 196, 39 P. 2d 978. It is equally well settled that permitting an amendment to plaintiff’s petition after the evidence is in which substantially changes the claim or the defense thereto is reversible error. Avery v. Jayhawker Gasoline Co., 101 Okla. 286, 225 P. 544; Jones v. Exchange National Bank, 124 Okla. 5, 253 P. 49; Combs v. Gough, 147 Okla. 40, 294 P. 165. The result of permitting .the amendment was to deny defendant the right to a trial by jury of the single issue upon 'which its liability was ultimately predicated, that is, the negligence of the servant, Ernest Coy. Under the pleadings, the theory upon which the case was tried was that defendant was liable by reason of the negligence of Harrison, whereas the judgment in the instant case is predicated upon an entirely different set of facts, that is, that defendant was liable by reason of the negligence of its servant, Ernest Coy. The permission of such amendment of the pleadings after the verdict was returned substantially changed the claim of plaintiff and the defense thereto by defendant. While the court, in furtherance of justice, may permit an amendment of the pleadings after verdict, where such amendment substantially changes plaintiff’s claim or defendant’s defense, it is error to render judgment on the verdict, but in such event the court should grant a new trial to permit the opposing party to meet the new issue. The judgment is reversed and the cause remanded, with directions to grant a new trial. WELCH, C. J., CORN, V. C. J., and BAYLESS, GIBSON, and DAVISON, JJ., concur. RILEY, HURST, and ARNOLD, JJ., dissent.