Goodwin, Joseph Robert

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Volume 71 | Issue 1 Article 13December 1968Pleading--Amendment of Pleadings by Leave ofCourtJoseph Robert GoodwinWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Civil Procedure CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationJoseph R. Goodwin, Pleading--Amendment of Pleadings by Leave of Court, 71 W. Va. L. Rev. (1968).Available at: https://researchrepository.wvu.edu/wvlr/vol71/iss1/13CASE COMMENTSthe service of a dependent servant, based on a psuedo-family relation-ship, no longer exists.23 The necessary shift in the function of theaction is to the protection of the employer's business interests, andthe cases indicate that the law has moved in that direction.John Campbell Palmer IVPleading-Amendment of Pleadings by Leave of CourtThe prior practice of "gamesmanship" in pleading has been re-placed by a judicious emphasis on substance rather than on formunder the West Virginia Rules of Civil Procedure. The Rules focuson the orderly presentation of all the relevant issues.' Under theRules, substantive law need no longer seem to be "secreted in theinterstices of procedure."2 Unfortunately, lawyers, and even judgesare often too busy with the business of the day to lay aside thehabits of decades. Perhaps, more for this reason than any other, theWest Virginia Supreme Court of Appeals gave a restrictive treatmentto Rule 15(a) of the West Virginia Rules of Civil Procedure indeciding the case of Perdue v. S. J. Groves and Sons Co.' Thepertinent facts of that case are as follows:Plaintiffs, who were landowners in Huntington, West Virginia,alleged their home was damaged as the proximate result of de-possibility of his servant injuring a third party. Conversely, when the servantis injured by a third party, it is difficult to find that the tortfeasor shouldforesee an injury to a person with whom the servant has merely a con-tractual relation. This is subject to the criticism that a tortfeasor should beheld to foresee such an injury since most people are employed; however,courts usually hold that this is too remote. Another rationale commonlyemployed is that the employer usually is the one who is best equipped tobear the loss, whether his servant injures a third person or a third personinjures his servant. Thus while the two doctrines may be symmetrical factual-ly, the rules of the courts result in the balance being weighted unequally.23 City of Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1,5, 10 A.2d 434, 436 (1940). See Note, The Action Per Quod ServitiumAmisit, 26 AUSTL. L. J. 122 (1952). See also United States v. Standard OilCo., 153 F.2d 958, 960 (9th Cir. 1946), aff'd 332 U.S. 301 (1947) (themodem relationship of employer-employee is basically one of contract).IThe Rules contemplate that a decision will be made on the meritsof the controversy. Morever, Rule 1 provides that the Rules "shall beconstrued to secure the just, speedy, and inexpensive determination of anyaction." W. VA. R. Civ. P. 1.2 "So great is the ascendency of the Law of Actions in the infancy ofCourts of Justice, that substantive law has at first the look of being graduallysecreted in the interstices of procedure." Sm HENRY MAINE, EARLY LAW ANDCUSTOM 389 (1907).3 161 S.E.2d 250 (W. Va. 1968).1968]1Goodwin: Pleading--Amendment of Pleadings by Leave of CourtPublished by The Research Repository @ WVU, 1968WEST VIRGINIA LAW REVIEWfendant's work on a highway construction project. Prior to trial,but after defendant had answered, plaintiffs made a motion pursuantto Rule 15(a) of the West Virginia Rules of Civil Procedure toamend their complaint to contain allegations of additional damages.The trial court denied plaintiffs' motion and later granted a defensemotion for summary judgment. Plaintiffs then appealed to theWest Virginia Supreme Court of Appeals, alleging in part that thetrial judge erred in refusing to grant plaintiffs' motion to amendtheir complaint. Held, the trial court did not err on the basis thatthe Rules of Civil Procedure substantially recognize the pre-existinglaw of West Virginia relating to the amendment of pleadings and thesound discretion of the trial judge in refusing or granting leave toamend. The court stated, in conclusion, that plaintiffs' motion dis-closed no basis for amendment. Perdue v. S. J. Groves and Sons Co.,161 S.E.2d 250 (W. Va. 1968).Rule 15(a) of the West Virginia Rules of Civil Procedure pro-vides, in part, that once a responsive pleading has been filed a partymay amend his plea only by leave of court or with the written con-sent of his adversary. Moreover, Rule 15(a) provides such leaveshall be freely given when justice requires.4 Because the West Vir-ginia Rule on amended and supplemental pleadings is identical withthe Federal Rule, the West Virginia court's interpretation of thisrule in the Perdue case may be profitably compared with the treat-ment given Rule 15(a) by the federal judiciary.5A perusal of the federal decisions on the subject reveals a strongliberality in allowing amendments under Rule 15(a).1 The federal4 "A party may amend his pleading once as a matter of course at anytime before a responsive pleading is served or, if the pleading is one to whichno responsive pleading is permitted and the action has not been placedupon the trial calendar, he may so amend it any any time within 20 daysafter it is served. Otherwise a party may amend his pleading only byleave of court or by written consent of the adverse party; and leave shall befreely given when justice so requires. A party shall plead in response to anamended pleading within the time remaining for response to the originalpleading or within 10 days after service of the amended pleading, whicheverperiod may be the longer, unless the court otherwise orders." W. VA. R. Civ.P. 15(a).5 "Another useful source will be interpretations of the Federal Rules. Yet interpretations of the Federal Rules should be considered in thecontext of federal jurisdiction and practice as a whole . . ... Silverstein, ABasic Introduction to the New West Virginia Rules of Civil Procedure,62 W. VA. L. Rnv. 117, 134 (1959). Compare FED. R. Civ. P. 15(a).6 E.g., Dombrovski v. Murff, 24 F.R.D. 302, 304 (1959). It is clearthat the principal reason for allowing amendments so liberally is to facilitatea disposition of cases on the merits. F. JIm.s, CivIL PRocEDuRE § 5.2 (1965).For a discussion of the liberality with which the federal courts have allowed[Vol. 712West Virginia Law Review, Vol. 71, Iss. 1 [1968], Art. 13https://researchrepository.wvu.edu/wvlr/vol71/iss1/13CASE COMMENTScourts have uniformly held that amendments should be freelygranted under this rule.7 The cases make it evident that Rule 15(a)declares an affirmative doctrine.' For example, the United StatesSupreme Court stated in Foman v. Davis that, in the absence of anyapparent or declared reason to the contrary, an amendment offeredunder Rule 15 (a) should be allowed.9 Justice Goldberg, speaking forthe Court, recognized the discretionary power of the trial court,but said, in effect, that a refusal to grant leave without justificationis an abuse of discretion. ' * In general, the federal courts are disin-clined to deviate from the mandate of Rule 15(a)." The trend offederal opinion points to a policy which views proposed amendmentsin a light most favorable to the movant." These courts have uni-formly placed the burden on the trial court and the opposing partyto support any denial of a motion to amend under Rule 15(a).3 Thisview is in sharp contrast to the view of the West Virginia courtin the Perdile case.The court there said in substance, that unless the movant canshow good reason why leave to amend should be granted, the trialcourt may properly, in its discretion, refuse to allow the amend-leave to amend, and many illustrative cases, see 3 J. MooRE, FEDERAL PRAC-rcE 15.08 (2d ed. 1968). See also IA W. BARRON & A. HOLTZOFF, FEDERALPRACncE AND PROCEDURE § 447 at 746, 747 (C. Wright ed. 1960).7 In fact, it can be said with little qualification that there must be ashowing of undue prejudice to the opposing party before a motion pursuantto Rule 15(a) will be denied. However, note that no satisfactory definitionof "undue prejudice" can be synthesized from the cases. See Shelley v.The Maccabees, 26 F.R.D. 10 (D.C.N.Y. 1960). Bad faith and undue delayhave also received considerable attention in the federal courts. However,these factors are usually secondary to the "prejudice" factor. For a generaldiscussion of "bad faith" and "delay" as factors affecting the trial judge'sdiscretion, see Donnici, The Amendment of Pleadings-A Study of the Opera-tion of Judicial Discretion in the Federal Courts, 37 S. CAL. L. Rav. 529, 535(1964).8 E.g., Lone Star Motor Import, Inc., v. Citroen Cars Corp., 288 F.2d69, 75 (5th Cir. 1961). This case states emphatically that Rule 15(a)declares an affirmative policy.9 371 U.S. 178, 182 (1962).10 Compare the following pertinent language with the decision in theprincipal case. "Of course, the grant or denial of an opportunity to amendis within the discretion of the District Court, but outright refusal to grantthe leave without any justifying reason appearing for the denial is not anexercise of discretion; it is merely abuse of that discretion and inconsistentwith the spirit of the Federal Rules." Id.I E.g., Dombrovskis v. Murff, 24 F.R.D. 302, 304 (1959).12 1 A. W. BARRON & A. HoLTzoFF, FEDERAL PRACTICE AND PROCEDURE §447 at 746, 747 (C. Wright ed. 1960).13 E.g., Midwestern Developments, Inc. v. City of Tulsa, 319 F.2d 53(10th Cir. 1963).1968]3Goodwin: Pleading--Amendment of Pleadings by Leave of CourtPublished by The Research Repository @ WVU, 1968WEST VIRGINIA LAW REVIEWment.' 4 This is a restricted view of Rule 15(a). However, insightinto the court's adoption of this interpretation may be had byexamination of West Virginia case and statutory law prior to theRules.' 5 Such an examination leads to the conclusion that thePerdue court was strongly guided by past practice.The general rule in West Virginia, prior to 1960, relating to theamendment of pleadings was less affirmative and more restrictivethan the present rule.'6 The prior statute which embodied thesegeneral rules provided a limitation on changing the cause of actionby amendment. The present Rule contains no such restriction.Moreover, as compared with the prior statute, Rule 15(a) limitsthe trial judge's discretion. The statute provided that an amendmentmay be permitted if, in the court's opinion, substantial justice will bepromoted thereby.' The present Rule provides that "leave [toamend] shall be freely given when justice so requires."' 8  Theemphatic difference between "may be" and "shall be" is one ofcritical importance and seems to lie at the foundation of the WestVirginia court's restrictive interpretation of Rule 15(a) in Perduev. S. J. Groves and Sons Co.'9The consistency of the federal courts' interpretation of Rule 15 (a)with the spirit of the Rules as a whole suggests that the West VirginiaSupreme Court of Appeals' contrary interpretation of its Rule 15(a)'4 The Court stated that it was of the opinion that plaintiffs motion forleave to file an amended complaint under Rule 15(a) of the Rules of CivilProcedure, disclosed "no basis for an amendment of the complaint and thatthe trial court did not abuse its discretion in refusing to grant the motion."Perdue v. S. J. Groves and Sons Co., 161 S.E.2d 250, 257 (W. Va. 1968)(emphasis added).'5 For a discussion of the law relating to the amendment of pleadingsprior to the adoption of the West Virginia Rules of Civil Procedure and acomparison of those Rules with the Federal Rules see Lugar, Common LawPleading Modified Versus the Federal Rules, 53 W. Va. L. REv. 27 (1950).16 Id. W. VA. CODE ch. 56, art. 4, § 24 (Michie 1949). "The plaintiffmay of right amend his declaration or bill at any time before the appearanceof the defendant; and, notwithstanding such appearance, in any action, suit,motion or other proceeding, the court, if in its opinion substantial justicewill be promoted thereby, may . . .permit any pleading to be amended ...changing the form but not the cause of action . . .and the court may allowany other amendment in matter of form or substance In any ... pleading ...which may enable the plaintiff to sustain the action, suit, motion or proceed-ing for the cause for which it was intended to be brought ....... Note thatthe present statute, W. VA. CODE ch. 56, art. 4, § 24 (Michie 1966), is identi-cal but has no application to actions which are within the scope of the WestVirginia Rules of Civil Procedure.17 W. VA. CODE ch. 56, art. 4, § 24 (Michie 1949).1 W. VA. R. Civ. P. 15(a) (emphasis added).'9 161 S.E.2d 250 (W. Va. 1968).[Vol. 714West Virginia Law Review, Vol. 71, Iss. 1 [1968], Art. 13https://researchrepository.wvu.edu/wvlr/vol71/iss1/13CASE COMMENTSshould be re-examined. While the West Virginia court in the Perduecase requires the movant to disclose some basis for his proposedamendment, the federal courts grant such leave freely and only denya motion to amend when certain conditions exist which wouldmake it unfair to allow the amendment."0Joseph Robert GoodwinProperty-Implied Warranty of Fitness in the Saleof a New HouseMorton, who was in the business of building and selling newhouses, contracted to sell a completed house and lot to Humber.The only warranty contained in the deed was the warranty of title.No other warranties, written or oral, were connected with the sale.Humber alleges that the house was not suitable for human habitationbecause the fireplace and chimney were not properly constructed.As a result of this defect, the house caught fire and partially burnedthe first time a fire was lighted in the fireplace. Morton defendedon the ground that the doctrine of caveat emptor applied to all salesof real estate. In the Court of Civil Appeals, Morton's motion for asummary judgment was granted and Humber appealed. Held,reversed and remanded. The caveat emptor rule as applied to newhouses is outdated and out of harmony with modern home buyingpractices. Consequently, the builder-vendor (house-merchant) im-pliedly warrants that such house was constructed in a good work-manlike manner and was suitable for human habitation. Humberv. Morton, 426 S.W.2d 554 (Tex. 1968).The doctrine of caveat emptor flourished during the nineteenthcentury in an atmosphere of rugged individualism where emphasiswas placed on secure business transactions.' However, caveat emptorwas not used extensively in the sale of homes because the home-buyer often hired an architect for designing and planning and thenhired a contractor to build according to the plans.' If the home weredefective, the home-owner had a cause of action against either thearchitect or the contractor.2OFor a full discussion of judicial discretion in the federal courts seeDonnici, The Amendment of Pleading-A Study of the Operation of JudicialDiscretion in the Federal Courts, 37 S. CAL. L. REV. 529 (1964).1 Keeton, Rights of Disappointed Purchasers, 32 TEx. L. Rnv. 1 (1953-4).2 Roberts, The Case of the Unwary Home Buyer: The Housing MerchantDid It, 52 CORNELL L.Q. 835, 837 (1967).- Id. at 837.196815Goodwin: Pleading--Amendment of Pleadings by Leave of CourtPublished by The Research Repository @ WVU, 1968

Pleading--Amendment of Pleadings by Leave of Court

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Pleading--Amendment of Pleadings by Leave of Court

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