9 F.R.D. 487 | D. Del. | 1949
This is an action instituted to recover damages for alleged personal injuries. The action was originally commenced by filing a complaint on May 11, 1948 in the Superior Court of the State of Delaware in and for New Castle County. On May 28, 1948 the cause was removed to this court. Paragraph 4 of the complaint contained allegations of the defendant’s negligent operation of a railroad train whereby the plain
Two questions are thus presented: (1) Is plaintiff entitled to a jury trial as a matter of right under Rule 38(b), or, if not, (2) Should the court as a matter of discretion order a jury trial under Rule 39(b) ?
Preliminarily to a determination of the first question, the nature of the amendment made to the complaint must be considered. Different reasoning must apply where the amendment introduces new issues to be tried as distinguished from an amendment which merely changes the language of the former averment with no change of substance and, perchance, made for the mere purpose of being a basis for a request for jury trial. An inspection of the original complaint and the amendment here involved convinces me that no new issues are involved. It is true that the original complaint may have been filed with relation to the principle of res ipsa loquitur and the amendment is a more detailed statement of the acts of negligence charged by the plaintiff upon the defendant. The issue presented by both pleadings, however, is the same, viz., whether the plaintiff was injured as a result of the defendant’s negligent operation of its railroad train at the time and place complained of.
1. The authorities are uniform that when a plaintiff has waived a jury tria.1 and subsequently files an amendment to the complaint which does not change the nature of the case or introduce new issues, such amendment does not entitle the plaintiff to demand a jury trial as a matter of right and over objection, pursuant to Pule 38(b). I have found no case to the contrary. Some authorities are listed in the footnote.
The motion of. defendant to expunge the demand of plaintiff for a jury trial as a matter of right under Rule 38(b) must be granted.
2. Should the request of the plaintiff for a jury trial be granted under Rule 39(b) as a matter of judicial discretion?
This court in a number of cases has had occasion to consider the pertinent rule. Container Co. v. Carpenter Container Corp., D.C., 9 F.R.D. 261; Canister Co. v. National Can Corp., D.C., 8 F.R.D. 408; State of Delaware v. Massachusetts Bonding and Insurance Co., D.C., 3 F.R.D. 65. In these, as well as the cases cited in the footnote,
. Waldo Theatre Corp. v. Dondis, D.C., 1 F.R.D. 685; Mealy v. Fidelity National Bank in New York, D.C., 2 F.R.D. 339; Stewart-Warner Corp. v. Staley, D.C., 2 F.R.D. 446; Sterling Products Corp. v. Sterling Drug Inc.,*; Munkacsy v. Warner Bros. Pictures, Inc., D.C., 2 F. R.D. 380; Roth v. Hyer, 5 Cir., 142 F.2d 227. Lader v. Dahlberg, D.C., 2 F.R.D. 49, involved the right of a defendant to a jury trial after amendment to a complaint, and Mack v. 48 Vesey Street Corp., D.C., 7 F.R.D. 487, involved the right of a plaintiff to a jury trial after an amendment to an answer.
. Bowles v. Goebel, 8 Cir., 151 F.2d 671, 674.
. Foch Estates, Inc., v. McDonald, D.C., 1 F.R.D. 506; Milstein v. Edward Small Productions, Inc., D.C., 3 F.R.D. 45; Arnold v. Chicago, Burlington & Quincy Ry. Co., D.C., 7 F.R.D. 678; Steiger v. Mullaney, D.C., 8 F.R.D. 486; Krussman v. Omaha Woodmen Life Ins. Soc., D.C., 2 F.R.D. 3.