Rayes de Lopez v. Sucrerie de Sainte Jeanne

8 P.R. Fed. 85

Opinion

HamiltoN, Judge,

delivered tide following opinion:

This is an application for leave to amend a complaint as to personal injuries, by adding other defects of tbe truck to those originally set out in the complaint. The verdict for the plaintiff was set aside by the court and a new trial ordered, whereupon the plaintiff tenders the amendment in question.

1. The right is based upon § 954 of the Revised Statutes, Oomp. Stat. 1913, § 1591, which is as follows:

•“No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe.”

This gives the right to amend “at any time” upon terms to be prescribed by the court. The Supreme Court has construed this provision as to time very broadly, and permitted the district court to allow a jurisdictional averment of citizenship to be added in aid of judgment in favor of the plantiff. In that case the defendant filed no opposing affidavit, and the Supreme Court held that he had thereby waived his right to contest the fact averred in the amendment. So tbat it would seem tbat the plaintiff is within ber rights in claiming an amendment after allowance of a new trial and before entering upon tbe same.

Tbis is a matter of Federal practice, and is not controlled by local laws or regulations.

2. Tbis must not be taken to admit of every kind of amendment. Tbe amendment proposed must be one tbat does not change tbe original cause of action. Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 41 L. ed. 485, 11 Sup. Ct. Rep. 120. Tbe quo modo of tbe alleged accident can be amplified, and tbat is all tbat is attempted in tbe present amendment. Plaintiff’s intestate is claimed to have died from tbe effect of tbe accident, and tbe amendment relates to bow it was be fell off of tbe moving truck and received bis injury.

3. Tbe only remaining question is as to terms which should be imposed. Tbe new claim may entail a new defense and tbe obtaining of additional evidence, and tbis in a case brought in forma pauperis. If tbe plaintiff has tbe right to amend, however, it would not be right for tbe court to change tbe form of ber suit, which would be tbe case if all costs were imposed upon ber. Tbe terms imposed, therefore, will be limited to the cost of tbe amendment and of whatever pleadings shall be filed down to a jury issue on tbe amendment.

It is so qrdered.