Kelly v. Cann , 192 Okla. 446 ( 1942 )

In his petition plaintiff alleged that defendant was engaged in transporting beverages, principally beer, from points in Missouri to points in Oklahoma, in trucks, and that plaintiff was injured in the State of Missouri, while riding in a truck driven by one Pierce. The allegation as to the relationship, as servants or otherwise, sustained by plaintiff and Pierce to Kelly, is as follows:

"That on May 27, 1939, one John Pierce was employed by the defendant T.J. Kelly to drive and operate a certain Dodge two-ton truck with semi-trailer in the conduct of the business of the defendant T.J. Kelly of hauling and transporting beer or beverages, and that on said day and date the said John Pierce was operating said two-ton Dodge truck with semi-trailer on a trip from St. Louis, Missouri, to Lawton, Oklahoma. Said truck was at the time and place complained of herein loaded with beer. That this plaintiff was riding in said truck as a passenger and guest of the defendant T.J. Kelly, and that while he was so riding in said truck as a passenger and guest at about four o'clock in the morning of May 27, 1939, while said truck was being operated on U.S. Federal Highway 66 at a point approximately 8 miles west of Springfield, Missouri, and while said truck was under the exclusive charge, control, management and operation of John Pierce, the agent servant and employee of the defendant T.J. Kelly, the said John Pierce negligently and carelessly operated said truck causing this plaintiff to be injured as specifically described hereinafter."

Defendant in his amended answer denied that either plaintiff or Pierce was his employee, or that Pierce was his agent, servant, or employee on the date of the accident, and denied that plaintiff was riding on the truck as a passenger or guest of defendant, but alleged that both were co-employees and fellow servants of one Roy Hennessee, and that both were charged with the responsibility, management, and control of the truck, and that if Pierce was negligent, his negligence was that of a fellow servant and was not in any event imputable to defendant. Plaintiff's reply was a general denial, and a specific denial that Pierce was the agent of plaintiff.

When the attorney for plaintiff made his opening statement at the trial he stated, in substance, that he expected to prove that plaintiff and Pierce were employees of defendant and were engaged in bringing a truckload of beer from St. Louis, Mo., to Altus; that they worked in shifts driving the truck, one resting while the other drove; that the one driving the truck, while so engaged was in full and complete charge of the truck, with all the authority which defendant would have exercised if he had personally been present; that by defendant's express direction the one driving could order the other to do anything he wanted done; and that Pierce, while driving the truck, was the boss, and was defendant's vice-principal, and that plaintiff was injured while performing a service required of him by Pierce, while in command of the truck.

Counsel for defendant made his opening statement, and then moved for a continuance on the ground that the opening statement of plaintiff, if the facts therein stated were proved, would constitute a fatal variance from the petition, and that defendant was not prepared to meet the issues "as they now have been drawn by the plaintiff's opening statement." This motion was denied by the trial court, and defendant excepted. At the close of plaintiff's evidence, which conformed to his opening statement, counsel for defendant demurred thereto on the ground that it wholly failed to prove the allegations of the petition, and upon the request of counsel for plaintiff to reopen the case and permit him to introduce further evidence in chief, counsel for defendant again asked for a continuance, stating that the direction the proof had taken made a material difference as to his defense and changed the entire theory thereof. He further stated that he desired to plead the laws of Missouri which would apply to the action if it were contended, as it now appeared to be, that plaintiff was the employee of defendant and Pierce a vice-principal. This request was denied, and the demurrer to the evidence overruled. At the close of all the evidence defendant moved for a directed verdict on the ground that the evidence failed to sustain the allegations of the petition. This motion was denied, and the trial court then granted a request by plaintiff to amend his pleadings to conform to the proof. No amended petition was filed or amendment made in the petition on file.

That a cause of action for damages to a guest or passenger is entirely different and distinct from a cause of action for damages to an employee injured while carrying out the orders of a vice-principal or superior servant is obvious. Barnett v. St. Louis-San Francisco Ry. Co., 140 Okla. 19, 282 P. 120. And it is equally obvious that the defenses would be likewise different and distinct, as the duty of the master to his servant and the duty of the owner of the truck to a guest or passenger are entirely different. The theory of plaintiff, as set forth in the opening statement, is a complete variance from the theory set forth in his petition. Plaintiff argues that under Rule 1 of the Interstate Commerce Commission Motor Carrier Safety Regulations, 1939, he was a guest or passenger while off duty, although at the same time an employee. But this rule was not pleaded, and the case was tried on the theory that plaintiff was on duty at the time he was injured because of his obedience to the order of Pierce, his so-called superior, that he remain in the cab of the truck and stay awake so that if he needed anything plaintiff would be there.

The main contention of plaintiff is that the variance was not material, as under 12 O. S. 1941 § 311, a variance is not material unless the adverse party is misled, to his prejudice, in maintaining his action or defense upon the merits. He says that defendant was not misled for the reason that nearly a month before the trial he advised defendant's attorney by letter of what his contention would be at the trial. This letter he introduced in evidence during the argument on defendant's motion for continuance, and the trial court predicated his refusal of the continuance largely on the fact that thereby defendant was advised of the plaintiff's real theory. We are cited to no case, and we know of none, which holds that a defendant is required to plead in his answer defenses to issues not raised by the pleadings but contained in written or verbal communications made by opposing counsel. The purpose of the pleadings is to set forth the facts constituting the claims and defenses of the parties. 12 O. S. 1941 § 261. To hold that defendant was required to disregard the verified petition filed by plaintiff and plead a defense which would ignore the facts set forth therein, upon the statement of plaintiff's counsel that he intended to prove a different set of facts, would in effect dispense with that part of our Code of Civil Procedure relating to pleadings and overrule a long line of cases holding that the petition must state all facts constituting the cause of action. Crowl v. Box, 144 Okla. 25, 288 P. 942; American Jobbing Ass'n v. James, 24 Okla. 460, 103 P. 670, and cases cited in 12 O.S.A. § 264, note 11. I do not consider that such letter rendered the variance complained of immaterial, or that it relieved plaintiff of the requirements that he set forth in his petition the facts relied upon for recovery. Plaintiff could not in this manner change the theory of his lawsuit, or amend his pleadings.

Plaintiff also calls attention to the fact that in his answer defendant denied that either plaintiff or Pierce was employed by him, but that both were employees of Roy Hennessee. The allegation as to plaintiff was surplusage, as it did not controvert any allegation in the petition as to him, but did controvert the allegation as to Pierce. Neither was it inserted in response to the letter above referred to, as the answer was filed March 11, 1940, and the letter was written April 13, 1940. I fail to see where this allegation in the answer affected the variance between the petition and the opening statement and proof of plaintiff or cured the defect in plaintiff's case.

The trial court should have granted defendant's request for continuance and permitted the parties to amend their pleadings so that defendant could make such defense as he desired, if the facts constituting the new theory of plaintiff were set forth in the petition as amended.

The allegations of negligence were predicated on the theory that plaintiff was riding in the truck as a passenger or guest of the defendant. But, commencing with the opening statement and continuing to the conclusion of the trial, plaintiff's counsel prosecuted the case on the theory that plaintiff and Pierce were fellow servants in the employment of the defendant, with Pierce acting as vice-principal at the time of the accident. When this change in theory first became apparent defendant moved for continuance on the ground that new issues had been injected into the case and that he was entitled to further time to meet the same. The court overruled the motion, and the cause proceeded to trial.

Timely objection was made to all questions propounded on the above theory of relationship, and exceptions saved by defendant to all adverse rulings thereon. At the close of all the evidence plaintiff moved to conform the pleadings to the proof. The motion was sustained over defendant's objection.

I agree with defendant that the trial court erred in permitting amendment of the pleadings after trial.

The variance between plaintiff's evidence and the allegations of his petition concerning the relationship of plaintiff and Pierce to defendant was a substantial one. Under the issues on this particular matter as they stood at the commencement of the trial the defendant was faced only with the task of refuting any proof that plaintiff was a guest in the truck and that Pierce was an employee of defendant. Under the new issue as permitted by the court he was compelled to overcome proof that plaintiff and Pierce were in his employment and that Pierce was his vice-principal at the time of the accident.

12 O. S. 1941 § 317 authorizes the court in its discretion to permit amendment of pleadings after trial to conform to the facts proved where such amendment does not change substantially the claim or defense. But this does not mean that the trial court may permit such amendment where the opposite party has made timely objection to the evidence. It is the duty of the trial court to confine the introduction of testimony to the issues. Citizens' Bank of Gans v. Mabray, 90 Okla. 63,215 P. 1067. Where, as here, the defendant makes timely objection to evidence on the ground that it does not tend to support the allegations of the petition, a motion after close of the evidence to conform the pleadings to the proof cannot be granted. That rule has been fully recognized by this court. Northwest Thresher Co. v. McNinch, 42 Okla. 155,140 P. 1170; Lawless v. Tuthill, 97 Okla. 210, 223 P. 613. In those cases the rule is quoted from other authorities as follows:

"A motion, after the close of the evidence, to conform the pleadings to the proof, can never be granted where the admission of the evidence was properly objected to when it was offered, upon the ground that it did not tend to support the allegations of the pleadings."

A contrary rule would clearly deny the defendant adequate opportunity to defend and would therefore seriously prejudice his legal rights.

Plaintiff has offered no authority in support of his contention that the amendment was proper, but says that defendant admitted at the commencement of the trial that the issue was whether plaintiff and Pierce were defendant's employees, and Pierce his vice-principal. In this the plaintiff is mistaken. Defendant nowhere made such an admission, but repeatedly sought a continuance on every occasion where the court indicated a disposition to receive the objectionable evidence. Counsel for defendant did say that defendant had denied under oath that plaintiff and Pierce were in his employment, but this statement was made in an attempt to arrive at a stipulation as to the nature of the issue. The parties did not reach an agreement in this regard; and defendant at no time agreed that the issue should be other than that raised by the pleadings.

For the foregoing reasons, I respectfully dissent.