Ekwall v. Los Angeles Hat Co.

NOURSE, P. J.

Plaintiff sued for damages for personal injuries arising out of an automobile accident. The cause was tried before a jury, which returned a verdict in the sum of $18,000. From the judgment on the verdict the defendants appeal upon typewritten transcripts.

The complaint alleged that the injuries were due to the negligence of the defendant Marks, who was at the time of the collision a salesman in the employ of the Los Angeles Hat Company. An answer was filed, verified by the defendant Marks, in which this allegation was not denied. On the morning of the trial the defendants, having procured new counsel to represent them, moved the court for leave to amend the answer for the purpose of denying this allegation. The motion for leave to amend was denied and the cause went to trial before the jury on the original pleadings. The claim of the Los Angeles Hat Company was that, although the defendant Marks was a salesman in its employ, he was also engaged by two other concerns, and that at the time of the collision he was in the course of his employment with one of these others. On this theory the defendant Los Angeles Hat Company sought the privilege to urge in its defense that the defendant Marks was not in the course

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of his employment with the Hat Company at the time of the accident, and that the Hat Company was not, therefore, responsible for plaintiff’s injuries. Offers to prove this theory were denied because of the admissions in the pleading. Denial of- the request for leave to amend in this particular is assigned as error on this appeal. In answer to the point the respondents cite numerous authorities holding that the application for leave to amend is addressed to the sound discretion of the trial court and that the exercise of this discretion should not be interfered with by the court on appeal. The appellants do not quarrel with the rule of the eases cited, but insist that under the peculiar facts of this case the denial for leave to amend was an abuse of discretion and that the cause should be reversed upon that ground. The question of when judicial discretion has been properly exercised is a difficult one to determine because ordinarily it depends entirely upon a difference of opinion of the individual who is called upon to determine it. The fact that the original answer herein was verified by the defendant Marks, rather- than by an officer of the Hat Company, and that the facts upon which the proposed amendment was based were not known to the Hat Company at the-time the answer was verified present a different state of facts from those involved in any of the cases cited and would seem to have warranted a greater leniency on the part of the trial judge when the application for leave to amend was made. However, as the judgment must be reversed upon another ground, it is not necessary to determine this point, as the amendment will be allowed prior to the new trial.