Horne v. Meakin

Devens, J. The objection made by the defendants that the amended count upon which the plaintiffs seek to recover was not filed until after verdict, and therefore that the plaintiffs cannot maintain their verdict, cannot be sustained. It was arranged, without objection by the defendants, when it was found that some amendment of the plaintiffs’ declaration was necessary, that such amendment should be made and filed thereafter, and the trial proceeded. Upon the declaration as it was to be amended, and upon the issue to be raised thereby, the presiding judge charged and the jury passed. From the instructions of the court as they appear upon the bill of exceptions, it is evident that when they were given it was fully understood that the amendment had not been in point of fact filed, and no exception was taken by the defendants to thus proceeding without the declaration. It is entirely competent for the court to permit amendments even after verdict, taking care that none are thus allowed by the filing of which the just rights of parties can be injuriously affected; and in the present case it is not shown or suggested that the amendment,as filed by permission of the court, presents any issue except [331] that which had been passed upon by the jury. Gen. Sts. c. 129, § 41. Emery v. Osgood, 1 Allen, 244. The exceptions alleged to the instructions must also be overruled. 1. The fact that the accident occurred on the Lord’s day did not necessarily prevent the plaintiffs from recovering, and it was not a violation of the Lord’s day act for the husband to hire a horse for the purpose of attending the funeral of his brother-in-law, accompanied by his wife, nor for her so to attend. 2. It was the duty of the defendants to furnish a suitable horse for the purpose for which it was hired, and a part of their contract that they would do so. If they have negligently furnished one which was unsuitable, and injury has been occasioned thereby, it is not a defence that they did not know that the horse was unsuitable. 3. It was also correctly ruled that if the contract was made by the father for his son, and the purpose for which the horse was to be used by the son (that of taking his wife and family to the funeral of his brother-in-law) was known to the defendants, then upon proof of other necessary facts, an action of tort might be maintained for the injury to the wife. 4. The addition made by the judge to the fourth request was necessary, in order that the jury should understand that the defendants were to be held responsible for damages arising from the unsuitableness of the horse, in accordance with his ruling which the defendants have objected to by their second exception. 5. The fifth request is disposed of by what has been already said as to the right of the judge to permit the amended count to be filed. 6. If the court considered that the tendency of the sixth instruction as requested- was to draw the attention of the jury from the point upon which the case seemed to rest, it was proper, after giving it, to add, “ and through no viciousness of the horse,” as even if the injury was occasioned by the combined causes of the viciousness of the horse, and sudden fright or the defective way, the defendants would be responsible. 7. The last instruction requested was properly modified by the judge. It appears by the bill of exceptions that the parties lived in the same village. Even if the father took the horse by mistake, yet if the defendants knew of the mistake, and [332] could with reasonable effort have notified the plaintiffs of it, and failed to do so, it must be inferred that they assented to any responsibility they might be subjected to, if injury was occasioned by the fact that the horse taken was unsuitable for the purpose for which one had been hired. Exceptions overruled.