Lynch v. Rosenthal

396 S.W.2d 272

 

RULE:

Permitting an amendment and denying a continuance is within the sound discretion of the trial court.

FACTS:

Defendant appealed from an order of the Circuit Court of Clay County (Missouri) which entered judgment in favor of plaintiff in an action alleging defendant's negligence in injury arising from farm equipment. Plaintiff, an injured farm worker, filed a complaint against defendant corn picker operator for damages for personal injuries inflicted by the corn picker. The trial court permitted an amendment to plaintiff's petition to allege, as negligence, defendant's failure to warn of the danger of walking in close proximity to the picker and its moving parts; the court denied defendant's request for a continuance to allow preparation time for refutation of the allegation. The jury returned a verdict for plaintiff. Defendant knew, before the trial began, that plaintiff intended to offer his negligence theory.

ISSUE:

Did the defendant stand in loco parentis to plaintiff?

ANSWER:

No.

CONCLUSION:

Judgment finding defendant liable for plaintiff's injuries upheld because no in loco parentis relationship existed between plaintiff and defendant where defendant did not hold plaintiff out as his son and defendant refused to pay plaintiff's medical expenses. Plaintiff was not a bare licensee, he was an invitee. Defendant was required to exercise ordinary care toward plaintiff to avoid injuring him. The plaintiff's contributory negligence was for the jury to determine.

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