
    George Bovee, Respondent, v. International Paper Company, Appellant.
    
      Negligence—injury from th^ fall of a trap door from which thet hinges had been removed —power of the court to allow amendments to pleadings. N-
    Iu an action brought to recover damages for personal injuries it appeared that in ony Of the floors of the defendant’s mill was a heavy trap door, the sides of which when closed had a bearing of one and one-half inches on the floor timbers, but the ends of which when closed were not supported by the floor timbers; that the door was originally fastened to the floor by strap hinges, and that on the side of the door distant from the hinges was an iron ring designed to be used as a handhold" by a person desiring to open the door; that, to enable the door to be removed bodily from its place the screws in the hinges were taken, out and were not replaced; that about fifteen months after the removal of the screws the plaintiff, an employee in the mill, attempted to raise the trap door, and that while so engaged the door slipped from the side supports and dropped to the floor below carrying the plaintiff with it. The plaintiff had never assisted in raising the trap door or seen the same raised, and he did not know that the screws in the hinges had been removed or that there was no support for the ends of the trap door.
    
      Held, that a j udgment entered upon a verdict in favor of the plaintiff should be affirmed.
    The only limitation upon the power of the court to allow an amendment of a pleading upon the trial, by conforming it to the facts proved, is that the amendment shall be in furtherance of justice and shall not change substantially the claim or defense.
    Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 26th day of May, 1905, upon the verdict of a jury for $8,500 which verdict was thereafter reduced by the court upon the plaintiff’s stipulation to the sum of $5,000 ; also from an order entered in said clerk’s office on the 13th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made during the trial allowing the plaintiff to amend the complaint.
    
      Edgar T. Brackett, for the appellant.
    
      George S. Raley, for the respondent.
   Chase, J.:

In a mill maintained by the defendant, a floor over a storeroom was four inches thick, and through this floor were three openings each about three feet wide and five feet long. Trap doors were made to fill these openings, which,trap doors were also four inches thick, and each weighed about 156 pounds. The-floor was laid upon' heavy timbers, and the openings were so made that they extended about one and one-half inches upon said timbers on either side. The sides of the trap doors, when closed, rested- upon said one and one-half inch projections of said supporting timbers, but there was nothing upon which they rested at the ends thereof. On one side of the trap door strap hinges were placed and fastened by screws to the trap door and the adjoining floor. On the opposite side of the trap door there was fastened a four-inch ring for use in raising the door. It was about twenty-four feet from, such" floor to-the floor of the storeroom. . About twice each year the trap doors were opened Or rernoved for the purpose of putting wood pulp into the storeroom, and this was done by wooden chutes placed through the openings and so adjusted as to carry the pulp in different parts of the storeroom. On the hinge side of the doors was. a post rilóse to the openings,, against which the door leaned when open. With ■ the door leaning against the. post it was impossible to adjust the chutes so as to carry the pulp in that part of the storeroom opposite where the trap door was standing against the post. In June, 1903, the defendant’s superintendent directed that the hinges of .one door be unfastened from the floor,- and the screws were then removed from the strap of the hinge extending over the floor, and thereafter, when the hole.was used, the door was removed. . .

On September 6, 1904, the plaintiff and another employee were directed to raise that- trap door and arrange the chutes for depositing pulp in the storeroom. The plaintiff had never ' assisted in raising the trap door, or seen the same raised. He did not know that the screws in the hinges had been removed from the floor, or that there was no support for the trap, door at the ends thereof. Plaintiff and his fellow-workman went to the door and found the same covered with strips of board's, which they proceeded to carry away, and, when his fellow-employee went with the last armfu-l of strips, plaintiff took hold of the ring and raised the door, and when he had raised it a short distance it slipped from the little shelf of about one and one-half inches on the hinge side thereof and dropped to the floor below, carrying the plaintiff with it. He sustained serious injuries. ■

On the trial a verdict of $8,500 was rendered for the plaintiff. The verdict was reduced tti $5,000 by order of the .court - and with the consent of the plaintiff, and judgment was entered thereop. for that amount.

• We aré of the opinion that the evidence was such as to require that-the case be -submitted to the jury. The defendant "insists that the judgment be reversed by reason of the action of the court-in regard to an amendment of the complaint. ' Plaintiff’s - complaint,-upon which he went to trial, alleged the construction of the trap door and the subsequent removal of the screws from the hinges, and that the hinges were left upon the floor "the same as they were before the screws were removed therefrom, and further' alleged that the. defendant “ negligently and carelessly neglected and omitted to replace the screws in said hinges of said trap door in said floor, and so negligently and carelessly neglected to securely fasten said trap door to the floor of said finishing room, and negligently and carelessly neglected to make said trap door safe and secure.”

It further alleged: “ That the fact that the defendant had removed the screws ,from the hinges of said trap door in the floor was unknown to the plaintiff, and. the fact that said trap door was unsafe and insecure was unknown to the plaintiff, but said facts were known to the defendant, and that the defendant carelessly and negligently neglected to inform the plaintiff of the fact that said screws had previously been removed from the hinges of said trap door, and carelessly and negligently omitted and neglected to inform this plaintiff of the unsafe, dangerous and insecure Condition of said trap door before ordering the plaintiff to open it.”

Upon the trial, after the plaintiff and two other witnesses, including plaintiff’s fellow-workmen, were examined as t<3 the accident, without objection so far as the pleadings are concerned, the court suggestéd that the complaint be amended and the record relating thereto is: “ The Court here suggested that the complaint was' framed differently from the proof given ; that plaintiff might need an amendment; that defendant was negligent in changing the situation from one he was familiar with into another. Plaintiff asked to withdraw a juror so as to amend the complaint to conform with the proof. The Court remarked that the complaint could be amended in that respect by alleging there was a defect in the ways and means, etc., as to the doors. Defendant objected .that the amendment should be made at a Special Term,, stating that he was surprised thereby. The Court remarked that if defendant was not surprised by the amendment, the trial might proceed; if he was surprised, a juror could be withdrawn and case postponed. Defendant stated he would proceed. The Court remarked that there should be a formal complaint made either during or at the close of the trial on the lines suggested. Defendant excepted. After the trial an amended complaint was drawn by plaintiff’s attorneys, submitted to defendant’s attorney and filed with the judgment roll, and forms a portion of this case.”

The" trial proceeded without further objection, and no further reference was made to the pleadings by either party, except that when one of the witnesses was asked by the plaintiff as to whether . there were cleats or rests for the trap door at the ends thereof, objection was made “ that there is no allegation- of negligence in the construction of the door. I suppose they intend to put that in the amended pleading.” There does not appear to have been a ruling by the court upon this question, but. the question was answered. The complaint was treated as amended and the allegations .thereof as denied, both during the trial and in submitting the case to the jury. The amended complaint submitted to the defendant’s attorney and filed with the judgment roll is a copy of the original complaint with a paragraph added thereto, alleging a defect in the condition of the ways, works and machinery connected with and used in the business of the defendant, and an express allegation “ That the defendant was negligent in the construction of the said trap door, namely, in not having shelves constructed under the sides of the said trap door upon which the trap door could rest, and that in not having such shelves under said trap door the ways, works and machinery of the defendant was defective.”

. Section 723 of the Code of Civil Procedure provides : “ The court may, upon the trial, or at any other stage of the action, .before or after judgment,, in furtherance of justice, and on such terms as it. deems just, amend any process, pleading or other proceeding * * *. by inserting an allegation material to the case ; or where the-amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in tlie pleadings' or other proqeedings, which does not affect the substantial rights of the adverse party.”

■ A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. If a party insists that he has been misled the court may in its discretion order the pleading to be amended upon such terms as it deems just. (Code Civ. Proc. § 539.)

.Where the variance is not material the court may direct the fact to be found according to the evidénce or may order an immediate amendment without costs. (Code Civ. Proc. § 540.)

The only limitation upon the power of the court to allow an amendment of the pleading by conforming it to the facts proved is that the amendment shall be in furtherance of justice and shall not change substantially the claim or defense. (Baylies’ Code PL & Pr. [2d ed.] 503.)

Assuming that there was a variance between the pleading and the proof in this case, the defendant was not misled thereby. The court did not even require that the defendant should prove to its satisfaction that it had been misled by the claimed variance, but was willing to assent to the plaintiff’s suggestion that a juror be withdrawn to allow the plaintiff an opportunity to apply at Special Term for leave to amend his complaint. The defendant intentionally elected to proceed with the trial after the court had stated that the complaint could be amended to conform to the proof. In its answer it had denied any negligence on its part causing the plaintiff’s injury. If it had desired to have the amended complaint filed at once or to have leave to file an answer thereto it is evident from the remarks by the court that such request would have been granted. • The allegations added to the complaint were treated as'denied in the trial court and are so treated by this court, and we do not see how the defendant has been prejudiced or injured by not having filed a formal answer to the complaint as amended. The power of the court to allow the amendment is clear. The failure of the court to postpone the trial or to require that the amendment to the complaint be written out, so that the defendant could inspect the same before proceeding with the trial and that defendant might answer the same, was the fault of the defendant and cannot now be insisted upon to the prejudice of the judgment.

The judgment and orders should be affirmed, with costs.

Judgment and orders unanimously affirmed, with costs. 
      
      
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