(concurring in part and dissenting in part).
I believe the trial court should be reversed on both issues. Therefore, I concur in part and dissent in part.
I am of the opinion that the trial court abused its discretion in allowing the amendment of the pleadings, after the close of all of the evidence (and the denial of plaintiffs’ motion for a directed verdict), to add the defense of contributory negligence against plaintiff Norma Beyer (Norma).
I fully agree with the concept that a trial court’s decision to allow an amendment is not to be disturbed unless there is a showing of a clear abuse of discretion which results in prejudice to the nonmoving party. Here, I believe the trial court’s decision allowing the amendment was prejudicial to Norma. As Justice Henderson stated in Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987), “[prejudice is often shown when a party is surprised and unprepared to meet the contents of the proposed amendment.” It was stated in another manner in Bucher v. Staley, 297 N.W.2d 802, 806 (S.D.1980), as “did [plaintiff] have a fair opportunity to litigate the [contributory negligence] issue, and could [she] have offered any additional evidence if the case had been tried on a different issue.”
The record seems clear to me that Norma was surprised by the proposed amendment. Further, she certainly did not have a fair opportunity to litigate the issue since the parties had rested prior to the time the amendment was allowed, and there had been no prior indication that such a defense would be raised against her.
It would appear that defendant’s assertion of contributory negligence against Norma was an afterthought. In filing his answer (on December 2, 1981), he asserted the defense against plaintiff Douglas Beyer, but for some unknown and unspecified reason he made no such assertion against Norma. There was never any hint of a contributory negligence defense against Norma in any pleading, argument or otherwise until the end of trial in January 1987. Arguably, defendant laid in the weeds with his contributory negligence defense against Norma until after all the evidence was submitted. This, in my view, is tantamount to trial by ambush.
Additionally, I find nothing in the record indicating that Norma tried the issue of contributory negligence by either express or implied consent. American Property Services v. Barringer, 256 N.W.2d 887 (S.D.1977).
I express no opinion whether, on remand, defendant could properly be allowed to amend his answer prior to the new trial, since that issue is not before us.