Johnson v. County of Muskegon

Fellows, J. I am unable to agree with Mr. Justice Moore that the trial court was in error in charging the jury that the only negligence alleged in the declaration, for which defendant would be liable, was that which grew out of the maintenance of the temporary way on an incline sloping down from the roadway to the ditch on the side. This, as I read this declaration, is the only negligence alleged. There is no allegation that the temporary way on this incline was out of repair by reason of holes, or sudden drops. The plaintiff in his testimony says: “* * * The exact condition of the road at the place where this accident occurred was very sidling, and right at that spot there was a hole where one runner went in. Perhaps it was a foot or more than a foot lower than where the runner was, and it tipped me over just as quick as that (snapping fingers). * * *» , The existence of the incline or slope was alleged; the existence of the hole that the runner of plaintiff’s sleigh dropped into was not. The plaintiff, to reverse this judgment, must affirmatively show error; and, to do so, I think must show by the record, not only that he has proven, but has alleged, actionable negligence on the part of the defendant which the court declined to submit to the jury. The fact that in making his proof, as to how the accident occurred, he.gave evidence tending to show negligence other than that alleged in the declaration, does not broaden the allegations therein contained, particularly when to so broaden them would work a reversal of the case. It must be borne in mind that the question here submitted is- not whether the defendant, on the state of the record, could obtain a reversal of a judgment in favor of the plaintiff if the court had submitted to the jury the question of negligence other than that alleged in the declaration. The defendant might be estopped by the record made in the court — 729 — below from claiming here that a ruling of the trial court, which he had there acquiesced in, was erroneous. Such is not the question submitted to us. Here the plaintiff is seeking a reversal because the court failed to submit to the jury negligence not alleged in the declaration. The holdings of this court have been uniform that, while the plaintiff is not required to set out the evidence in his declaration, he is required to inform the court and the defendant by his pleadings what his cause of action is, and particularly in negligence cases to allege wherein he claims the defendant was negligent. A few of these cases will illustrate the rule. It was said by Mr. Justice Graves, in the case of Marquette, etc., R. Co. v. Marcott, 41 Mich. 433 (2 N. W. 795): “Reason and good sense as well as law compel the plaintiff by his declaration in these cases to inform the defendant and the tribunal what the complaint is, and he must not only show that the defendant has been negligent, but must further show in what respect. The matters of negligence to which the injurious consequence is referred must be properly averred.” Mr. Justice Durand, speaking for the court, said in Reed v. Gould, 93 Mich. 359 (53 N. W. 356): “If a party is legally entitled to recover for an alleged wrong, it must be in a proceeding reasonably adapted to the purpose, or upon pleadings framed in such a manner as to warrant the particular remedy sought for; and a cause should not be submitted to a jury upon a theory not germane to the pleadings, or merely on account of certain equitable considerations which the trial may have disclosed, but which a party can only obtain in such a proceeding or upon such pleadings as fairly, logically, and legally furnish the court with a basis upon which to grant the remedy which it is called upon to give.” In Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911), Mr. Justice Campbell said; — 730 — “The decisions of this court have been uniform that no proof of negligence can be received, beyond what is alleged, and that allegations of the wrong are necessary.” Mr. Justice Hooker said, in O’Neil v. Railway Co., 101 Mich. 437 (59 N. W. 836): _ “It is true, as contended by counsel, that a declaration is not required to set up the evidence by which the cause of action is to be proved, but an action upon the case does require a specific and unequivocal statement of the essential facts constituting- the cause of action.” The case of Pennington v. Railway Co., 90 Mich. 505 (51 N. W. 634), is quite in point. There the court directed a verdict for the defendant on his own motion; there was a variance between the declaration and the proofs but the record did not disclose that the defendant made this point, or requested a directed verdict. The question was held, however, by a majority of this court to be available here. The plaintiff, in the instant case, did not have a legal right to go to the jury upon a claim of negligence not alleged in his declaration; if no legal right was denied him in the court below, he is not entitled to a reversal here. Counsel for the plaintiff most strenuously urges that the benefit of the statute of amendments be applied in this case. He says: “Thus we see, by reference to the statute, that had the plaintiff been successful in this cause and obtained judgment, and the declaration was faulty as claimed by the court, it was the duty of the court of his own motion, by reason of the proofs produced, to have amended the declaration, and thus supported the judgment. It surely cannot be alleged that the rule would be different and the rights of the parties would be less when the plaintiff did not prevail in his contention because of the striking out of his evidence of the main facts of the case by the court.” — 731 — With counsel’s premise I agree; from his conclusion I differ. This statute should be applied to save a judgment, but not to work a reversal. The statute (section 10273, 3 Comp. Laws; section 12974, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 12483) provides: “The omissions, imperfections,' variances and defects in the preceding sections of this chapter enumerated, and all others, of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error.” This statute has been frequently invoked in this court to prevent mistrials, and on numerous occasions it has been held that, inasmuch as the amendment might have been made in the court below, this court would make the amendment here on its own motion. Cases illustrative of this are: Smith v. Pinney, 86 Mich. 484 (49 N. W. 305); Enright v. Insurance Co., 91 Mich. 238 (51 N. W. 928); Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5). But this is done to work an affirmance, not a reversal; to cure an error, not to create one. 31 Cyc. p. 404; White River Bank v. Downer, 29 Vt. 332. The question here is whether the statute of amendments should be invoked by this court to defeat a judgment valid in all regards, but rendered invalid by making the amendment. I think not. It was said in Williams & Hall v. Birch, 6 Bosw. (N. Y.) 674: “We are not aware of any decisions which hold it a proper exercise of discretion, or .that the court has the power to so amend the pleadings, after a trial and a review at the general term of exceptions there taken, as to convert, merely by force of such amendment, a correct decision into an erroneous one, and an irreversible into a reversible judgment.” — 732 — The supreme court of Iowa, in the case of Thyssen v. Storage Co., 134 Iowa, 749 (112 N. W. 177, 13 L. R. A. [N. S.] 572), holds: “As plaintiff had chosen his ground, proceeded to trial, and_ submitted his case on the claim as stated in_ the original petition, we think he cannot be permitted to mend his hold after a verdict has been returned against him, and demand a new trial on another and materially different theory.” The question 'was passed upon in Dunham v. Brown, 9 Kan. App. 889 (58 Pac. 232), and it was said by the Kansas court: “It is contended by counsel for plaintiffs in error that the evidence shows a waiver on the part of the defendants of the right to plead failure of consideration for the note. The alleged waiver was not pleaded in the replies filed to the answers of the defendants, and no request for leave to amend the replies was made until after the motion for a new trial was overruled. The request came too late. An examination of a large^ number of decisions of the Supreme Court construing section 189 of the Civil Code, which provides that any pleading may be amended before or after judgment to conform the same to facts proven, when such amendment does not change substantially the claim or defense, leads us to conclude that such amendments are permissible only to uphold verdicts and judgments, and not to overthrow them.” McKernan v. Railway Co., 138 Mich. 519 (101 N. W. 812, 68 L. R. A. 347), is not out of accord with these cases. There no question was made as to the sufficiency of the pleadings to cover the case made so far as the opinion shows, either by court or counsel, and this court did not permit the amendment here, but, reversing the case upon other grounds, contented itself with saying: *‘We cannot assume that, had such a point been made, the circuit judge would have refused an amendment.” — 733 — In the instant case, the question was raised in the court below, not by the defendant it is true, but by the court, and plaintiff’s attention was challenged to it by the charge of the court; he made no request for permission to amend, although the trial court in his discretion could have allowed the amendment after instructions to the jury (Prater v. Miller, 25 Ala. 320 [60 Am. Dec. 521]), and, had he allowed such amendment, would, no doubt, then have submitted the case as made by the amendment to the jury, The formal amendments to the declaration need not have been filed instanter, but might be filed within a reasonable time after verdict. Harris v. Thomas, 140 Mich. 462 (103 N. W. 863). Permission to amend was not asked for, plaintiff’s requests were general in their terms and did not point out the specific negligence here urged, nor, so far as the record discloses, was the court advised that plaintiff made any claim, other than that stated by the court in his charge, nor was any claim made that the declaration was broad enough to permit recovery, except upon the theory submitted to the jury. I think the trial court correctly construed the declaration, and that we should not, either upon our own motion or at plaintiff’s request, so amend the declaration as to create error and then reverse the case for such error. I do not think the other assignments of error are well taken. In my judgment the case should be affirmed. Stone, Osteandee, Steeee, and Beooke, JJ., concurred with Fellows, J.