Lange v. Union Pac. R.

Citations

• 126 F. 338
• 62 C.C.A. 48
• 1903 U.S. App. LEXIS 4320

Syllabus

<p>1. Pleadings — Amendment—Name.</p> <p>Where, after answer, by leave of court the defendant filed an additional pleading stating an additional defense, which it styled an “additional answer,” the fact that it was so named, and that the practice did not recognize such a pleading, was immaterial, since it would be regarded as an amendment to the answer filed.</p> <p>2. Same — Federal Courts — Amendment of Pleadtnss — State Laws.</p> <p>Since, by Rev. St. § 954 [U. S. Comp. St. 1901, p. 696], authorizing federal courts to allow amendment of pleadings, Congress has legislated generally on the subject, the federal courts in granting such amendments are not governed by the state laws or practice.</p> <p>3. Same — Discretion—Abuse—Review.</p> <p>The granting of leave to amend pleadings is discretionary with the trial court, and its action is not reviewable except in case of gross abuse of discretion.</p> <p>4 Master and Servant — Injuries to Servant — Liability Acts — Instruction —Implied Repeal.</p> <p>Sess. Laws Colo. 1893, p. 129, c. 77, provides for master’s liability for injuries to his servant under certain circumstances, and requires as a condition to recovery the service of notice of the injury, etc., on the em-. ployer within 60 days after the occurrence. It also provides the maximum recovery, and establishes rules of procedure. Sess. Laws Colo. 1901, p. 161, c. 67, affirms the doctrine of master’s liability for the negligent injury of a servant, abrogates the fellow-servant doctrine, etc., but contains no requirement of notice, limit of liability, or rules of procedure; and following a provision repealing all conflicting acts and parts of acts is a proviso that the act shall not be construed to repeal or change the existing laws relating to the rights of persons injured to maintain an action against the employer. Reid, that the conditions, limitations, and procedure provided by the act of 1893 were not impliedly repealed by the act of 1901, and hence the failur