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a contract for 1000 rails made directly with Central Law Journal.

himself, but on the contrary, showed that

plaintiff had introduced A to defendant as St. Louis, Mo., July 8, 1921.

his (plaintiff's) customer, and that defend

ant had agreed to pay plaintiff a commisPOWER AND LIBERALITY OF THE COURT sion of $2 per ton on all orders for steel TO ALLOW AMENDMENTS.

rails which A might order. Plaintiff, be

fore verdict, asked the Court to allow an In spite of the assurances given by law- amendment to his pleading to conform to yers at bar association meetings and else- his proof. This, the Trial Court, in a where, and by enthusiastic text writers and proper exercise of its discretion in such publicists, that amendments to pleadings cases, permitted. Defendant objected to "are very liberally allowed in all formal and the amendment but did not allege surprise most substantial matters" (1 Bouv. Law

or ask for a continuance, but seeks, on apDict. 138), the courts in this country in

peal, to have the judgment against him set actual cases are frequently as strict as they aside on the ground that the Trial Court ever were at common law, and seem to be did not have the power to allow an amendunable to get away from the idea that plead- ment to the complaint which so substaning is something sacred, upon the exact tially changed the cause of action. The terms of which the parties must succeed Appellate Division of the Supreme Court, or fail without correction or amendment with medieval preciseness, agreed with deexcept in purely formal matters. It is this fendant's contention, set aside the judgattitude on the part of the American courts ment, and compelled the plaintiff to sue which has given cause for lay complaints again over a matter of which the defendant against the administration of justice in this had ample notice and which could easily country, and is worthy of serious consider

have been determined in the case after ation by the bar.

proper amendment had been made. A recent New York case will serve as a

The general rule is that the allowance or text for these observations. This case is

refusal of amendments to pleading is not in itself particularly noteworthy, but “largely a matter which is in the sound disis sufficiently so to illustrate a typical

cretion of the Trial Court." (31 Cyc. 368.) situation, existing everywhere, that must

The great majority of cases hold that an be corrected before the Bar

can in

appellate court will interfere only in gross duce the public to believe that court-made

abuses of such discretion. In some states, rules of procedure will be more liberal or

as well as in England, all such amendments inore liberally construed than those made

are allowed as a matter of course. If they by the Legislature. The case to which we change the cause of action and defendant refer is that of Finch v. Fosler Co. (App.

is surprised, the Court may continue the Div. Sup. Ct., N. Y.), 65 N. Y. L. J. 883.

cause with imposition of costs, but in no In this case plaintiff alleged that on or case will the cause, having once come beabout the 19th day of May, 1920, he agreed fore the Court, be allowed to ride off to with the defendant to purchase 1000 gross defeat simply because the plaintiff made a tons of steel rails at $54 per ton, and there- mistake in pleading his cause of action. after sold said merchandise to A, and that defendant agreed to take over said order Let us note a few recent cases. Thus, it and pay plaintiff $2 per ton for all mer- is held, that a cause of action for fraud chandise shipped to and paid for by A. In can be amended to state a specific false repmaking proof plaintiff was unable to show resentation shown by the evidence, but not

contained in the pleading. Rathbun V. to one in equity, or vice versa. These Parker, 113 Mich. 594, 72 N. W. 31. So courts represent the advanced lines of also an amendment conforming an allega- American progress in the matters of tion that a note was given by a firm, to liberality of amending pleading and as opevidence showing that it was given by an posed to the ridiculous rules of the fatality assignee of the firm, cannot be objected to of a variance. on the ground of surprise. Williston v. In the New York case the plaintiff alCamp, 9 Mont. 88, 22 Pac. 501.

leged a contract by which he was to re

ceive $2.00 per ton on an order of 1,000 In this country it is admitted, we have tons of steel rails. He alleged a direct connot advanced far enough to permit an en- tract for the rails, which contract was tirely new cause of action to be stated by transferred, with the consent of the defendway of amendment, although in England

ant, to one, A, at a profit of $2.00 per ton. and Canada the test is not whether the At the trial, however, plaintiff proved a amendment sets up a new cause of action, contract by which he as a broker was to but whether the adverse party can be com- receive $2.00 per ton as : commission on pensated for delay or inconvenience by an an order for 1,000 tons procured by him. allowance for costs or otherwise. Lee v. The action in either case is one on contract, Gallagher, 15 Manitoba 677. The best rule it arises out of the same transaction, conto our mind is stated in 31 Cyc. 410, when cerns the same subject-matter, and is for the author states:

the same amount of compensation. To say

an amendment to change the allegation in "In some of the states it is within the

such a case to conform to ille proof conpower of the Court, before trial, to allow

stitutes a “subtantial change in the cause of plaintiff to insert in his complaint, by way

action” is to make the law ridiculous in the of amendment, a new and distinct cause of action, provided the result sought to eyes of all thinking men. In this case an be obtained is the same, and the amend- entirely different contract is not stated by ment does not affect the substantial pur- the amendment, but merely a different form pose of the action.”

of the contract alleged to arise out of the

same transaction. To this proposition may be cited, inter alia, the following cases : Shropoline v. We are not contending for looseness in Kennedy, 84 Ind. 111; Deyo v. Morss, 14+

pleading. We believe good pleading in the N. Y. 216, 39 N. E. 81; Oliver v. Ray

sense of a careful, concise statement of the mond, 108 Fed. 927; Chicago, etc., Ry. Co. cause of action is essential to give the v. Stein, 75 I11. 41; Gates v. Paul, 117 Wis. Court jurisdiction and for the purposes of 170, 94 N. W. 55.

res adjudicata. But all these legitimate pur

poses are consistent with liberality in In the Oliver case it was held proper to

granting leave to amend a pleading either permit an amendment setting up an addi

before trial is commenced or after trial to tional cause of action at law of the same conform to the proof adduced. An nature and growing out of the same trans

antendment, of course, ought not to justify action, and the Court declared such amend- an absolute change of the cause of action, ments should be allowed in the interest of but such a change ought not to be regarded justice and to prevent a multiplicity of

as effected by stating a contract differently suits. In the Gates case it was held that from that alleged where the contract as any amendment is allowable where the ac

stated in the amendment arises out of the tion is not changed from one sounding in

same transaction set up in the original tort to one on contract, or from one at law pleading.


NOTES OF IMPORTANT DECISIONS nor have reason to believe, that the other per

son was armed.

"There is another group of cases, on which WHEN DEATH INTENTIONALLY CAUSED

the plaintiff in error mainly relies, in which BY ANOTHER IS ACCIDENTAL.- When

the assured was killed by a third person, where man who enters a quarrel is killed by his ad- recovery is not allowed; but in all these cases versary, is his death accidental? The U. S.

the deceased engaged in an encounter under

such circumstances that he invited his adverCircuit Court of Appeals (Sixth Cir.) declares

sary to mortal combat, and either foresaw or it is if the deceased had no reason to believe

should have foreseen that death or injury might that his adversary would intentionally take result. See Taliaferro v. Travelers' Protective his life. Employers Indemnity Corporation v.

Ass'n (8 C. C. A.), 80 Fed. 368, 25 C. C. A.

494; Hutton v. State's Accident Ins. Co., 267 Grant, 271 Fed. Rep. 136. In this case it was

Ill. 267, 108 N. E. 296, L. R. A. 1915E, 127, held that where a railway conductor armed

Ann. Cas. 1916C, 577; Meister v. General Achimself to scare a passenger out of a toilet, cident, Fire & Life Ins. Co., 92 Ore. 96, 179 Pac. from which he had refused to come on the

913, 4 A, L, R. 718. Of these cases Taliaferro

v. Travelers' Protective Ass'n may be taken as conductor's orders, and was shot and killed

typical. The deceased had drawn a revolver by the passenger before he had time even to and had struck his adversary in the face before threaten with his gun, his death was acciden- the latter drew his revolver and fired, and it tal, within an accident insurance policy, if

was held that the insured's death was not acci.

dental, because he foresaw or should have forehe had no reason to anticipate that the pas

seen that death or injury might probably resenger was armed, or that his action would

sult from his own conduct." tend to provoke a fatal encounter.

The Court discusses the authorities and shows that what appears to be conflicting de cisions are easily distinguishable by the fact that the deceased did or did not have reason

INHERITANCE BY AND THROUGH to anticipate the result of the encounter. On this point, the Court said:

ADOPTED CHILDREN. “In one group of cases the insured met his death, as the result of an intentional and de

Adoption was unknown to the common signed killing of some third person, and if such killing was not the direct result of misconduct law and has been grafted by statute on of the deceased, or was unforeseen and not

American and English jurisprudence from reasonably to be anticipated by him, then his death was held to be the result of external, the Roman civil law. The relation has violent, and accidental means. For cases SO

raised many interesting questions, not the holding, see the following: Robinson v. U. S. Mut. Accident Ass'n (C. C.), 68 Fed. 825, least important of which is the question of affirmed on another ground, 74 Fed. 10, 20 C. C.

the right of inheritance by and through A. 262; Railway Mail Ass'n v. Moseley (6 C. C. A.), 211 Fed. 1, 127 C. C. A. 427; Utter adopted children. v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913; Furbush v. Maryland

1.--Inheritance by Adopted Child From Casualty Co., 131 Mich. 234, 91 N. W. 135, 100 Adopting Parents and From Natural ParAm. St. Rep. 605; on second appeal, 133 Mich. 483, 95 N. W. 55; Hutchcraft's Ex’r v.

ents.-A husband and wife made a deed

Insurance Co., 87 Ky. 300, 8 S. W. 570, 12 Am. St. to their daughter for life, with remainder to Rep. 484; Richards v. Travelers' Ins. Co., 89

her child or children living at her death, Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455; Insurance Co. v. Bennett, 90 Tenn. 256, 16 S. and to their heirs and assigns forever, and W. 723, 25 Am, St. Rep. 685; Ripley V. Rail

in default of child or children at her death, way Passengers' Assurance Co., 2 Bigelow, Ins. Rep. 738, Fed. Cas. No. 11,854; Lovelace V. then to the heirs generally of the daughter. Travelers' Protective Ass'n, 126 Mo. 104, 28

After the making of the deed the daughter S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638. Of these cases, the one last cited may be married, but her husband soon died, leaving taken as typical. Lovelace, the insured, at

no children by this marriage. Subsequently tempted to eject a man, who was drunken and boisterous, from the office of a hotel. In doing the widow adopted a child under the law so, and in overcoming resistance he used no other then in force. When the deed was made means than his hands, and while engaged in the effort the other draw a pistol and shot him,

there was no law in Illinois providing for causing death. A recovery on the ground that the death was accidental was sustained, be

the adoption of children. The Court held cause Lovelace neither used nor attempted to that it made no difference whether the use other than natural, physical means to eject by force, and while so doing did not know,

child was a child within the meaning of



the law or not, for he must take the fee can inherit, but it does not follow that she as heir generally of his adopting mother.' can inherit property that never belonged

In Indiana a husband and wife adopted to her adopting parent. If the intention a child and the wife died. Afterwards the had been that she should inherit through husband married again. The Court held her adopting father we think the statute that the adopted child took a fee simple in would have so provided. The Louisiana the real estate of the husband, subject to statute is a special act, and the Iowa Court the life estate of the childless widow by seem to think that they would enlarge or a second or other marriage, for, in the extend the scope and effect of the statute eyes of the law it is the child of the authorizing the adoption were they to give adopting father by the adoptive mother. it any other construction. The Iowa Court In other words, the adopted child occu- at the time this decision was rendered was pied the same position that it would have composed of five members, and two of the occupied as to the inheritance, if it had Judges dissented. In neither the majority been born to the parents in lawful wed- nor dissenting opinion was the case of lock.

Vidal v. Commagereza referred to. This Where a husband and wife adopt a Louisiana case, construing a special legischild in Louisiana, and move to Iowa, and lative act of adoption, on page

518, the adopting father dies there before his quoting from Smith's

quoting from Smith's Commentaries. S father, who leaves an estate in Iowa, the 467, says: And those (laws) which are adopted child does not inherit the share made in favor of any persons are which the adopting father would have in- be interpreted in as large an extent herited had he survived his father. The the favor of these motives, joined with Court bases its decision on the construc- equity, is able to give them, and they are tion of the Louisiana statute and holds not to be interpreted strictly, nor applied that that statute provides that the adopted in such a manner as to be turned to the child can inherit from its adopting parent, prejudice of those in whose favor they were but not through him; that the adopting made." The Louisiana case, supra, in effather never owned the property which he fect, holds that in that State an adopted would have inherited, because he died be- child not only inherits from the adopting fore the intestate who lived and died in parent, but by the act of adoption becomes Iowa, where the land is situated. The

The the grandchild of the parents of the adoptCourt, in the course of its decision, says ing parent. that the adopted child inherits from its The statute of New Hampshire provides adopting parents as though she were his

that an adopted child shall bear the same legitimate child. That is. she inherits

relation to his adopting parents and their from him as a legitimate child would, or in kindred, in respect to the inheritance of the same manner, or to the same extent.

property, and all other incidents of the reBut she is not his child or heir, except as lation of parent and child, as he would if fixed by the Louisiana statute. That stat- he were the natural child of such parents, ute does not say that she is the heir or en- except he shall not take property expressly titled to recover from the father of her limited to the heirs of the body or bodies adopted father, or that she shall or can in- of the adopting parents. A legatee died herit, a part of his estate through her adopt- during the life of the testator, leaving a ed father. Whatever property the latter natural daughter and an adopted one. The owned at his death, the adopted daughter statute of wills contained this provision,

touching lapsed legacies: “The heirs in the (1) Butterfield v. Sawyer, 187 111. 598. (2) Markover v. Krauss, 132 Ind. 294.

(3a) 13 La. Ann 516. : (3) Estate of Sunderland, 60 Iowa 782.

(4) N. H. Laws 1862, C. 2603.

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descending line of a legatee or devisee, de adopted child is not entitled to that share ceased before the testator, shall take the

in the estate of the parent, which the adoptestate bequeathed or devised, in the same ing mother would have received if living at manner the legatee or devisee would have

the death of her parent. The Court was taken it if he had survived." The Court of the opinion that the adopted child could held that the adopted child took as a lineal not inherit from any of the kindred of the descendant of the legatee by force of the adopting parents. statute, and was as lawfully in the line of descent as if he were placed there by birth."

Under a will which contains certain be. In Ohio a different ruling was made. A quests to a son of the testator and makes will contained the following clause: "I

no mention of a child or issue of the son, hereby give and bequeath all the residue an adopted child of the son takes nothing of my property *** to be equally divided ;

if the son dies before the testator.10 There one-half to the heirs of my daughter, Re- is no reason why an adopted child may not fella, deceased wife of John McConica,

inherit from its natural parents, and also namely, Wilbert, Thomas, and Charles Mc

from its adopting parents. If the first Conica, and Winnie McConica Fulton." adopting parents have died, the child can be

Wilbert McConica died before the tes- adopted a second time, and inherit from tator, leaving no heirs of his body, but

both the first and second adopting parents leaving an adopted daughter. The Court and from its natural parents at the same held that the legacy to Wilbert lapsed, and

time. The second adoption does not dethat his adopted daughter was not entitled

stroy the relation created by the first adopto his share in the estate of his grandfather, tion and the legal capacity to inherit crethe testator. In other words, that the

ated thereby.11 A niece of deceased, had adopted daughter could not inherit through

she survived him, would have inherited a her adopting father. The Court bases its part of his estate. She left three children decision on its construction of the statute, and one of these died prior to the death which provides that if a devise of real or

of the intestate, but left surviving him an personal estate is made to any child or

adopted daughter. The Court held that other relative of the testator, and such child the adopted daughter was entitled to the or other relative shall die, leaving issue

share which her foster father would have surviving the testator, such issue shall take

received had he been alive at the death of the estate. "True,"

the Court


the intestate. 12 The holding in this case is “3140$ provides that such adopted child opposite to that in the Sunderland Case,129 'shall be to all intents and purposes the

where it was held that the adopted child child and legal heir of the person so adopt- could inherit from the foster parent, but ing him, or her, entitled to all the rights not through him. But the Court says that and privileges and subject to all the obli

"a careful reading of the opinion" (in the gations of a child of such person, begotten Sunderland Case) "indicates the decision in lawful wedlock.' But this is far from

was based on the construction of the speproviding that such adopted child shall be

cial act of the General Assembly of Louisithe issue of the adopter, and of his blood

ana." The Court concedes that the weight and of the blood of his ancestors."

of authority is against its conclusion (citIn Kentucky it is held that where an

ing the Michigan case of Van Derlyn v. adopting mother dies before her parent, the Mack, and the Tennessee case of Helms v.


(5) Clark v. Clark, 76 N. H. 551; Warren v. Prescott, 84 Me. 483.

(6) Phillips v. McConica, 59 Ohio St. 1.
(7) 2 Ann. Ohio Stat. (1897), sec.. 5971.
(8) 2 Ann, Ohio (1897), sec. 3140.
(9) Merritt v.: Morton, 143 Ky: 133. i

(10) Gammons v. Gammons, 212 Mass. 454.
(11) Patterson v. Browning, 146 Ind. 160.
(12) Shick v. Howe, 137 Iowa 249.
(12a) In re Estate of Sunderland, 60 Iowa 732

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