59 N.J.L. 441 | N.J. | 1896
The opinion of the court was delivered by
It is a cardinal rule for the control of a trial court that the questions submitted to the jury should be within the issues raised by the pleadings.
From what is above stated, it plainly appears that the pleadings in this case presented no issue as to the state or position of the cleat, the sole complaint being as to the rotten, weak, insufficient and defective condition of the rope and pulleys. It was, therefore, erroneous for the judge to submit such an issue to the jury under the pleadings as they stood (Martinez v. Runkle, 28 Vroom 111), and the next question for us is whether we should now exert the power of amendment, so as to embody that subject of controversy in the declaration.
All the testimony taken at the trial, and all the instructions of the judge to the jury, seem to beset forth in the bill of exceptions. So far as we can discover from this bill, neither party had in mind at the trial any suggestion of negligence on the part of the defendant with respect to the cleat, until it was broached by the judge near the close of his charge. The real controversy was over the question whether the rope had broken because of its inherent weakness or because of abrasion against improper pulleys, the condition of the cleat being dealt with only for the purpose of accounting for the fall of the lamp without the defendant’s fault.
If, therefore, we should now introduce this issue into the pleadings, it would not be done in order to maintain a determination of the question which was really in controversy between the parties, but it would support a verdict that may have been rendered upon a matter which the parties have not fairly litigated. For such an end, the power of amendment ought not to be exercised.
There is another error upon the record, in that the verdict and judgment are for greater damages than the declaration claims. 1 Chit. Pl. 339; Robert Pilford’s Case, 10 Rep. 116; Executors of Van Rensselaer v. Executors of Platner, 2 Johns. Cas. 18, note; Curtiss v. Lawrence, 17 Johns. 111; Cortelyou v. Cortelyou, 1 Pen. 318; Herbert v. Hardenbergh, 5 Halst. 222.
Undoubtedly this error might be corrected by the plaintiff’s remitting the excess of damages, and if such a remittitur were entered, this court would amend the judgment accordingly. But in the Supreme Court it was held that the declaration would be considered as amended so as to claim the sum found by the verdict, and thus maintain the judgment as it stands. To this, we cannot assent.
If a declaration should allege a cause of action on proof of which a larger sum must be due than is stated in the ad damnum clause, then that clause might be deemed formal, and after verdict, might be amended to conform with the real claim set forth in the pleadings. But where, as in this case, the declaration is for unliquidated damages and contains no indication of the extent of the plaintiff’s claim outside of the ad damnum clause, we must presume that the defendant regulated his conduct at the trial with reference to a claim for the damages there stated, and might have modified his course of defence had a claim for a larger sum been in controversy. As was said by Lord Kenyon, in Tomlinson v. Blacksmith, 7 T. R. 133: “It would be going too far to make the amendment required, without sending the cause to a new trial, as the defendant might have gone to trial relying that no more than [the stated] damages could be recovered against him.” See, also, Corning v. Corning, 6 N. Y. 97.
For affirmance—None.
For reversal—The Chancellor, Gummere, Dixon, Garrison, Magie, Reed, Bogert, Sims, Brown. 9.