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Central Law Journal.

St. Louis, Mo., July 8, 1921.

POWER AND LIBERALITY OF THE COURT TO ALLOW AMENDMENTS,

In spite of the assurances given by lawyers at bar association meetings and elsewhere, and by enthusiastic text writers and publicists, that amendments to pleadings. "are very liberally allowed in all formal and most substantial matters" (1 Bouv. Law Dict. 138), the courts in this country in actual cases are frequently as strict as they ever were at common law, and seem to be unable to get away from the idea that pleading is something sacred, upon the exact terms of which the parties must succeed or fail without correction or amendment except in purely formal matters. It is this attitude on the part of the American courts which has given cause for lay complaints against the administration of justice in this country, and is worthy of serious consideration by the bar.

A recent New York case will serve as a text for these observations. This case is

not in itself particularly noteworthy, but is sufficiently so to illustrate a typical situation, existing everywhere, that must be corrected before the Bar can induce the public to believe that court-made rules of procedure will be more liberal or more liberally construed than those made by the Legislature. The case to which we refer is that of Finch v. Fosler Co. (App. Div. Sup. Ct., N. Y.), 65 N. Y. L. J. 883.

In this case plaintiff alleged that on or about the 19th day of May, 1920, he agreed with the defendant to purchase 1000 gross tons of steel rails at $54 per ton, and thereafter sold said merchandise to A, and that defendant agreed to take over said order and pay plaintiff $2 per ton for all merchandise shipped to and paid for by A. In making proof plaintiff was unable to show

a contract for 1000 rails made directly with himself, but on the contrary, showed that plaintiff had introduced A to defendant as his (plaintiff's) customer, and that defendant had agreed to pay plaintiff a commission of $2 per ton on all orders for steel rails which A might order. Plaintiff, before verdict, asked the Court to allow an amendment to his pleading to conform to his proof. This, the Trial Court, in a proper exercise of its discretion in such cases, permitted. Defendant objected to the amendment but did not allege surprise or ask for a continuance, but seeks, on appeal, to have the judgment against him set aside on the ground that the Trial Court did not have the power to allow an amendment to the complaint which so substantially changed the cause of action. The Appellate Division of the Supreme Court, with medieval preciseness, agreed with defendant's contention, set aside the judgment, and compelled the plaintiff to sue again over a matter of which the defendant had ample notice and which could easily have been determined in the case after proper amendment had been made.

The general rule is that the allowance or refusal of amendments to pleading is "largely a matter which is in the sound discretion of the Trial Court." (31 Cyc. 368.) The great majority of cases hold that an appellate court will interfere only in gross abuses of such discretion. In some states, as well as in England, all such amendments are allowed as a matter of course. If they change the cause of action and defendant is surprised, the Court may continue the cause with imposition of costs, but in no case will the cause, having once come before the Court, be allowed to ride off to defeat simply because the plaintiff made a mistake in pleading his cause of action.

Let us note a few recent cases. Thus, it is held, that a cause of action for fraud can be amended to state a specific false representation shown by the evidence, but not

contained in the pleading. Rathbun v. Parker, 113 Mich. 594, 72 N. W. 31. So also an amendment conforming an allegation that a note was given by a firm, to evidence showing that it was given by an assignee of the firm, cannot be objected to on the ground of surprise. Williston v. Camp, 9 Mont. 88, 22 Pac. 501.

In this country it is admitted, we have not advanced far enough to permit an entirely new cause of action to be stated by way of amendment, although in England and Canada the test is not whether the amendment sets up a new cause of action, but whether the adverse party can be compensated for delay or inconvenience by an allowance for costs or otherwise. Lee v. Gallagher, 15 Manitoba 677. The best rule. to our mind is stated in 31 Cyc. 410, when the author states:

"In some of the states it is within the power of the Court, before trial, to allow plaintiff to insert in his complaint, by way of amendment, a new and distinct cause of action, provided the result sought to be obtained is the same, and the amendment does not affect the substantial purpose of the action."

To this proposition may be cited, inter alia, the following cases: Shropoline v. Kennedy, 84 Ind. 111; Deyo v. Morss, 144 N. Y. 216, 39 N. E. 81; Oliver v. Raymond, 108 Fed. 927; Chicago, etc., Ry. Co. v. Stein, 75 Ill. 41; Gates v. Paul, 117 Wis. 170, 94 N. W. 55.

In the Oliver case it was held proper to permit an amendment setting up an additional cause of action at law of the same nature and growing out of the same transaction, and the Court declared such amendments should be allowed in the interest of justice and to prevent a multiplicity of suits. In the Gates case it was held that any amendment is allowable where the action is not changed from one sounding in tort to one on contract, or from one at law

These

to one in equity, or vice versa. courts represent the advanced lines of American progress in the matters of liberality of amending pleading and as opposed to the ridiculous rules of the fatality of a variance.

In the New York case the plaintiff alleged a contract by which he was to receive $2.00 per ton on an order of 1,000 tons of steel rails. He alleged a direct contract for the rails, which contract was transferred, with the consent of the defendant, to one, A, at a profit of $2.00 per ton. At the trial, however, plaintiff proved a contract by which he as a broker was to receive $2.00 per ton as commission on an order for 1,000 tons procured by him. The action in either case is one on contract, it arises out of the same transaction, concerns the same subject-matter, and is for the same amount of compensation. To say an amendment to change the allegation in such a case to conform to the proof constitutes a "subtantial change in the cause of action" is to make the law ridiculous in the eyes of all thinking men. In this case an entirely different contract is not stated by the amendment, but merely a different form of the contract alleged to arise out of the same transaction.

We are not contending for looseness in pleading. We believe good pleading in the sense of a careful, concise statement of the cause of action is essential to give the Court jurisdiction and for the purposes of res adjudicata. But all these legitimate purposes are consistent with liberality in granting leave to amend a pleading either before trial is commenced or after trial to conform to the proof adduced. An amendment, of course, ought not to justify an absolute change of the cause of action, but such a change ought not to be regarded as effected by stating a contract differently from that alleged where the contract as stated in the amendment arises out of the same transaction set up in the original pleading.

VOL. 93

NOTES OF IMPORTANT DECISIONS nor have reason to believe, that the other per

a

WHEN DEATH INTENTIONALLY CAUSED
BY ANOTHER IS ACCIDENTAL.-When
man who enters a quarrel is killed by his ad-
The U. S.
versary, is his death accidental?
Circuit Court of Appeals (Sixth Cir.) declares
it is if the deceased had no reason to believe
that his adversary would intentionally take
his life. Employers Indemnity Corporation v.
Grant, 271 Fed. Rep. 136. In this case it was
held that where a railway conductor armed
himself to scare a passenger out of a toilet,
from which he had refused to come on the
conductor's orders, and was shot and killed
by the passenger before he had time even to
threaten with his gun, his death was acciden-
tal, within an accident insurance policy, if
he had no reason to anticipate that the pas-
senger was armed, or that his action would
tend to provoke a fatal encounter.

The Court discusses the authorities and
shows that what appears to be conflicting de-
cisions are easily distinguishable by the fact
that the deceased did or did not have reason
to anticipate the result of the encounter.
this point, the Court said:

On

"In one group of cases the insured met his death, as the result of an intentional and designed killing of some third person, and if such killing was not the direct result of misconduct was unforeseen and not of the deceased, or reasonably to be anticipated by him, then his death was held to be the result of external, For cases so violent, and accidental means. holding, see the following: Robinson v. U. S. Mut. Accident Ass'n (C. C.), 68 Fed. 825, affirmed on another ground, 74 Fed. 10, 20 C. C. v. Moseley (6 A. 262; Railway Mail Ass'n C. C. A.), 211 Fed. 1, 127 C. C. A. 427; Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913; Furbush v. Maryland Casualty Co., 131 Mich. 234, 91 N. W. 135, 100 Am. St. Rep. 605; on second appeal, 133 Mich. 483, 95 N. W. 55; Hutchcraft's Ex'r v. Insurance Co., 87 Ky. 300, 8 S. W. 570, 12 Am. St. Richards v. Travelers' Ins. Co., 89 Rep. 484; Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455; Insurance Co. v. Bennett, 90 Tenn. 256, 16 S. W. 723, 25 Am. St. Rep. 685; Ripley v. Railway Passengers' Assurance Co., 2 Bigelow, Ins. Rep. 738, Fed. Cas. No. 11,854; Lovelace v. Travelers' Protective Ass'n, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638. Of these cases, the one last cited may be Lovelace, the insured, attaken as typical. tempted to eject a man, who was drunken and boisterous, from the office of a hotel. In doing so, and in overcoming resistance he used no other means than his hands, and while engaged in the effort the other draw a pistol and shot him, A recovery on the ground that causing death. the death was accidental was sustained, because Lovelace neither used nor attempted to use other than natural, physical means to eject while so doing did not know, by force, and

son was armed.

"There is another group of cases, on which the plaintiff in error mainly relies, in which the assured was killed by a third person, where recovery is not allowed; but in all these cases the deceased engaged in an encounter under such circumstances that he invited his adversary to mortal combat, and either foresaw or should have foreseen that death or injury might result. See Taliaferro v. Travelers' Protective Ass'n (8 C. C. A.), 80 Fed. 368, 25 C. C. A. 494; Hutton v. State's Accident Ins. Co., 267 Ill. 267, 108 N. E. 296, L. R. A. 1915E, 127, Ann. Cas. 1916C, 577; Meister v. General Accident, Fire & Life Ins. Co., 92 Ore. 96, 179 Pac. 913, 4 A. L. R. 718. Of these cases Taliaferro v. Travelers' Protective Ass'n may be taken as typical. The deceased had drawn a revolver and had struck his adversary in the face before the latter drew his revolver and fired, and it was held that the insured's death was not accidental, because he foresaw or should have foreseen that death or injury might probably result from his own conduct."

INHERITANCE BY AND THROUGH
ADOPTED CHILDREN.

Adoption was unknown to the common law and has been grafted by statute on American and English jurisprudence from The relation has the Roman civil law. raised many interesting questions, not the least important of which is the question of the right of inheritance by and through adopted children.

1.-Inheritance by Adopted Child From Adopting Parents and From Natural Para deed ents. A husband and wife made to their daughter for life, with remainder to her child or children living at her death, and to their heirs and assigns forever, and in default of child or children at her death, then to the heirs generally of the daughter. After the making of the deed the daughter married, but her husband soon died, leaving no children by this marriage. Subsequently the widow adopted a child under the law then in force. When the deed was made there was no law in Illinois providing for the adoption of children. The Court held that it made no difference whether the child was a child within the meaning of

the law or not, for he must take the fee as heir generally of his adopting mother.1 In Indiana a husband and wife adopted a child and the wife died. Afterwards the husband married again. The Court held that the adopted child took a fee simple in the real estate of the husband, subject to the life estate of the childless widow by a second or other marriage, for, in the eyes of the law it is the child of the adopting father by the adoptive mother. In other words, the adopted child occupied the same position that it would have occupied as to the inheritance, if it had been born to the parents in lawful wedlock.2

Where a husband and wife adopt a child in Louisiana, and move to Iowa, and the adopting father dies there before his father, who leaves an estate in Iowa, the adopted child does not inherit the share which the adopting father would have inherited had he survived his father. The Court bases its decision on the construction of the Louisiana statute and holds that that statute provides that the adopted child can inherit from its adopting parent, but not through him; that the adopting father never owned the property which he would have inherited, because he died before the intestate who lived and died in Iowa, where the land is situated. The Court, in the course of its decision, says that the adopted child inherits from its adopting parents as though she were his legitimate child. That is, she inherits. from him as a legitimate child would, or in the same manner, or to the same extent. But she is not his child or heir, except as fixed by the Louisiana statute. That statute does not say that she is the heir or entitled to recover from the father of her adopted father, or that she shall or can inherit, a part of his estate through her adopted father. Whatever property the latter owned at his death, the adopted daughter

(1) Butterfield v. Sawyer, 187 Ill. 598.
(2) Markover v. Krauss, 132 Ind. 294.
Estate of Sunderland, 60 Iowa 782.

:(3)

can inherit, but it does not follow that she can inherit property that never belonged to her adopting parent. If the intention had been that she should inherit through her adopting father we think the statute would have so provided. The Louisiana statute is a special act, and the Iowa Court seem to think that they would enlarge or extend the scope and effect of the statute authorizing the adoption were they to give it any other construction. The Iowa Court at the time this decision was rendered was composed of five members, and two of the Judges dissented. In neither the majority nor dissenting opinion was the case of Vidal v. Commagerea referred to. This Louisiana case, construing a special legislative act of adoption, on page 518, quoting from Smith's Commentaries. § 467, says: "And those (laws) which are made in favor of any persons are to be interpreted in as large an extent as the favor of these motives, joined with equity, is able to give them, and they are not to be interpreted strictly, nor applied in such a manner as to be turned to the prejudice of those in whose favor they were made." The Louisiana case, supra, in effect, holds that in that State an adopted child not only inherits from the adopting parent, but by the act of adoption becomes the grandchild of the parents of the adopting parent.

The statute of New Hampshire provides that an adopted child shall bear the same relation to his adopting parents and their kindred, in respect to the inheritance of property, and all other incidents of the relation of parent and child, as he would if he were the natural child of such parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents. A legatee died during the life of the testator, leaving a natural daughter and an adopted one. The statute of wills contained this provision, touching lapsed legacies: "The heirs in the

(3a) 13 La. Ann 516.

(4) N. H. Laws 1862, C. 2603.

descending line of a legatee or devisee, de ceased before the testator, shall take the estate bequeathed or devised, in the same manner the legatee or devisee would have taken it if he had survived." The Court held that the adopted child took as a lineal descendant of the legatee by force of the statute, and was as lawfully in the line of descent as if he were placed there by birth.5 In Ohio a different ruling was made. will contained the following clause: "I hereby give and bequeath all the residue of my property *** to be equally divided; one-half to the heirs of my daughter, Refella, deceased wife of John McConica, namely, Wilbert, Thomas, and Charles McConica, and Winnie McConica Fulton."

the testator.

A

Wilbert McConica died before the testator, leaving no heirs of his body, but leaving an adopted daughter. The Court held that the legacy to Wilbert lapsed, and that his adopted daughter was not entitled to his share in the estate of his grandfather, In other words, that the adopted daughter could not inherit through her adopting father. The Court bases its decision on its construction of the statute," which provides that if a devise of real or personal estate is made to any child or other relative of the testator, and such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate. "True," the Court. "§ 31408 provides that such adopted child 'shall be to all intents and purposes the child and legal heir of the person so adopt ing him, or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person, begotten in lawful wedlock.' But this is far from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors."

says,

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adopted child is not entitled to that share in the estate of the parent, which the adopting mother would have received if living at the death of her parent. The Court was of the opinion that the adopted child could not inherit from any of the kindred of the adopting parents.

Under a will which contains certain bequests to a son of the testator and makes no mention of a child or issue of the son, an adopted child of the son takes nothing if the son dies before the testator.10 There is no reason why an adopted child may not inherit from its natural parents, and also If the first from its adopting parents. adopting parents have died, the child can be adopted a second time, and inherit from both the first and second adopting parents and from its natural parents at the same time. The second adoption does not destroy the relation created by the first adoption and the legal capacity to inherit created thereby. A niece of deceased, had she survived him, would have inherited a part of his estate. She left three children and one of these died prior to the death of the intestate, but left surviving him an adopted daughter. The Court held that the adopted daughter was entitled to the share which her foster father would have received had he been alive at the death of the intestate.12 The holding in this case is opposite to that in the Sunderland Case,12a where it was held that the adopted child could inherit from the foster parent, but not through him. But the Court says that "a careful reading of the opinion" (in the Sunderland Case) "indicates the decision was based on the construction of the special act of the General Assembly of Louisiana." The Court concedes that the weight of authority is against its conclusion (citing the Michigan case of Van Derlyn v. Mack, and the Tennessee case of Helms v.

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