145 P. 926 | Nev. | 1914
Lead Opinion
By the Court,
This action was brought to recover damages in the sum of $20,000 for the breach of a contract to furnish a special train. From the verdict and judgment in favor of the plaintiff for $10,000, and from an order denying motion for a new trial, this appeal is taken by the company.
Defendant operates a railroad from Reno in this state to Doyle and Amedee in California. On the evening of January 21, 1911, the plaintiff was informed that his son, who had been caught in a storm and frozen, was suffering from blood poisoning, near Doyle, and it was necessary that he be removed speedily to Reno for- medical treatment, and that death would likely result if such removal and treatment were delayed. Under the allegations and evidence of plaintiff it appears that the plaintiff contracted with the appellant, for the consideration of
Two days after the beginning of the trial on November 20, and after the jury had been impaneled, defendant objected to the taking of the testimony on the grounds that the complaint was insufficient because it did not show compliance by the defendant with the interstate act. The objection was overruled, and no effort was made to amend the answer until after evidence had been heard during that day and part of the next, when defendant, without notice, applied to the court for leave to file an amendment to its answer.
Later, and after the defendant had introduced testimony and upon the following morning, motion for leave to amend the answer was renewed upon the affidavit of the defendant’s attorney. This motion was overruled. As often held and as usual in general practice, amendments should be liberally allowed; but it is not every character of amendment which should be allowed after months of dilatory tactics and after the trial has progressed. Different courts have held that an amendment will not be permitted to an answer at, any stage of the proceedings for the purpose of setting up such an unconscionable defense as. the statute of limitations. The court properly refused to allow such a character of an amendment after so long a delay and because it sought to set up the appellant’s own wrong by failing to comply with the law-in matters not strictly germane to the cause of action or justifying the appellant in afflicting suffering and damage upon the plaintiff. Without the amendment there is no allegation or proof and no presumption that the appellant failed to comply with the law in having its rates for special train fixed and published, if any such
Regarding freight: Engle v. Simmons, 148 Ala. 92, 14 South. 1013, 7 L. R. A. n. s. 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740 and note.
This court has already put itself in accord with this modern and better doctrine in Barnes v. Western Union, 24 Nev. 125, 50 Pac. 438, 77 Am. St. Rep. 791, which case has been considered favorably and followed by courts in other states. The defendant here, as well as all common carriers, dependent upon the right of eminent domain, its franchise, and the people of the community for its support, owes a duty to the public and its patrons, in addition to the moral obligation upon it and all honest men, to make due effort to keep the terms of the contract;.
The company was fully informed regarding the serious condition of the plaintiff’s son, the necessity that he be speedily brought to Reno for medical treatment in order to save his life, and consequently of the great anxiety which would result to a fond parent who had paid for a special train in order to save his son. There is no excuse, legally or morally, for the wilful, flagrant, and deceptive breach by the appellant of the contract for the special train. Many cases appear in the books where common carriers have been held liable for failure to furnish
"In the case of Morrison v. The John L. Stephens, 17 Fed. Cas. 838, the libelant Morrison paid for passage and the exclusive use of a stateroom for himself and for his wife, who was an invalid, from New York to San Francisco. Relying on the waybill, which was different from the ticket Morrison had secured, the agent at Panama attempted to place a male passenger in the stateroom with Morrison and his wife. ■ Morrison objected, and pleaded for the exclusive use of the room for himself and wife, but she was given a berth in a stateroom with two other females from Panama to San Francisco, and he was deprived of having the exclusive company of his wife. Damages in the amount of $2,500 were awarded.”
We have examined other assignments upon which so much reliance does not appear to be placed, and we find no error in the record aside from this.
If within ten days the plaintiff files in this court his consent that the judgment be modified so as to reduce the amount allowed him for damages to $5,000, an order will be made that the judgment stand as so modified; otherwise the district court will be directed to grant a new trial.
Rehearing
On Petition for Rehearing
Rehearing denied.