This is an action for statutory damages on account of a boy’s death occasioned, as is charged, by the negligence of the defendant railway .company. The plaintiffs are named as “Charles Habel and Katie Habel.” The petition opens thus:
“The plaintiffs state that they are the father and mother of William C. Habel, who died a minor and unmarried on the twenty-fourth day of November, 1892.” Then follow allegations of defendant’s corporate character and of the particulars of the killing of the boy. The negligence of defendant is charged to be the moving of one of its cars suddenly, while the boy was getting aboard as a passenger, in consequence of which, it is alleged, he fell, was run over and was killed. Plaintiffs pray judgment for $5,000 and costs.
The answer is a general denial (except as to defendant’s incorporation) and a plea of the boy’s own negligence. The latter plea was put in issue by a reply.
At the trial testimony was given tending to prove plaintiffs’ case. Among other things Mrs. Habel testified that her husband was the father and she was the mother of the boy. The circumstances of his death need not be gone into now. ' The result of this appeal is found to turn on a different point.
The jury returned a verdict for plaintiffs after receiving a number of instructions on the law applica
The trial was a contested one. The issue as to the parentage of the child was not eliminated at that time by any admission on the part of defendant.
After a verdict for plaintiffs, defendant moved for a new trial. Among other grounds of the motion were alleged error in plaintiffs’ instructions, and the statement that Ohas. Habel was not the father of the child, and hence not entitled to recover.
In support of the motion defendant submitted affidavits tending to establish the fact just stated in regard to the paternity of the boy, and to show that the latter was born of the female plaintiff before her marriage to Charles Habel. Pending defendant’s motion for new trial, plaintiffs filed a motion “to amend the pleadings, verdict and judgment in this cause by striking out the name of Charles Habel as one of the plaintiffs and to allow the judgment to stand in the name of Katie Habel,” because:
“First. That the name of Charles Habel, as plaintiff, was used through mistake, as to his relation to the deceased, William C. Habel — and said Charles Habel was not a necessary party.
“Second. That said cause was fully and fairly tried, and the plaintiff, Katie Habel, is entitled to the judgment.
“Third. That said amendment is in furtherance of justice, and works no hardship or wrong to the defendant.
“Fourth. That upon the record the plaintiff, Katie Habel, is entitled to said verdict and judgment.”
The learned trial court thereafter entered the following order, which explains itself:
*164 • “The court having heard and duly considered the defendant’s motion for a new trial, and also the plaintiffs’ motion to amend the pleadings, verdict and judgment in this cause by striking out the name of Charles Habel as one of the plaintiffs, and to allow the judgment to stand in the name of Katie Habel, and being fully advised in the premises, doth order that plaintiff’s said motion to amend the pleadings, verdict and judgment in this cause by striking out the name of Charles' Habel as one of the plaintiffs, and to allow the verdict and judgment to stand in the name of Katie Habel, be and the same is hereby sustained to the end that said pleadings, verdict and judgment may conform to the evidence in this cause; and the court doth further order that said motion fot a new trial be and the same is hereby overruled.”
The defendant appealed after duly saving exceptions.
1. The jury found (in response to an instruction) that plaintiffs were the father and mother of the boy. The fact of his relationship to plaintiffs was a material one. It was one of defendant’s substantial rights in the action to have that fact passed upon by the constitutional triers of facts. The affidavits submitted after the verdict and the course taken then on behalf of Mrs. Habel indicate that Chas. Habel was not the father of the boy. The testimony submitted by defendant to prove that fact was directed to the charge on that subject in its motion for new trial. The defendant at no time abandoned its denial of the allegations as to the child’s paternity which the petition contained.
While the showing made by defendant after verdict tends to prove that Mrs. Habel was one of the boy’s parents, that fact alone can not be correctly held as an admission by defendant of her right of recovery on the
Our law in regard to amendments is very liberal. It is intended to cure all sorts of defects o'f form, and to permit the correction of many errors in substantial features of the case, upon timely application. But according to section 2098 the court is not authorized, even before judgment, to amend a record so as to permit a substantial change of the plaintiff’s claim where "the proof at the trial does not support the amendment; nor should the court allow any amendment after verdict that will affect prejudicially the substantial rights of the adverse party. (R. S. 1889, secs. 2100, 2303.)
The order for amendment permitting the name of Mr. Habel to be stricken out and the judgment to stand in favor of his wife as the sole parent of the boy, amounted to a decision by the learned circuit judge on a question of fact directly raised by the pleadings and which defendant had not abandoned, namely: the question as to the right of either of the original plaintiffs to recover as the parent of the'boy. That issue defendant had a right to demand should be submitted to. a jury. And in putting before the court (on its motion after verdict) testimony of the facts relied upon
2. The mere circumstance that the actual amendments ordered by the court were not in fact carried into the written papers we regard as of little consequence. If that was the only objection to the amendments we would treat them as made.
But the objection to the action of the trial court is of a moi’e substantial character. In actions of this sort the plaintiff must establish in the proper way all the facts required to create the statutory right of action. And we hold it to be error to enter a judgment against defendant until all of said facts are so found, where they have been put in issue and have not been admitted.
The judgment is reversed and the cause remanded
for a new trial.