45 So. 686 | Ala. | 1908
Lead Opinion
The plea of the statute of limitations (No. 12) to counts 3 and 4 of the amended complaint, being in legal form, was not subject to the demurrer interposed, and the trial court erred in sustaining the same. If, however, the undisputed evidence fixed the injury or death within one year of the commencement of the suit, then the plea could have been properly charged out, and the action of the trial court in sustaining the demurrer would be error without injury. The undisputed evidence shows that the intestate’s death was within a year of the commencement of the suit, but was more than a year before the addition of the amended counts to which the plea was filed. The result is that, if said amended counts related back to the original complaint, then the action of the court in sustaining the demurrer was error without injury. On the other hand, if the amendment did not relate back, the defendant was injured by the action of the trial court in sustaining the demurrer to the plea of the statute of limitations. This brings us to the consideration of a question as to which there is some conflict in authorities, as well as considerable confusion among the profession. The first count
A new cause of action is not set up by amendment, within the rule governing the statute of limitations in such cases, where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. — Terre Haute R. R. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277, and extensive note. “‘As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid tc meet the possible scope and varying phases of the testimony.” 1 Ency. Pl. & Pr. 564 (quoted from body of text at top of page, citing many authorities in support of same), cited approvingly in the following cases, where the question of statute of limitations was before the court: Pratt v. Montcalm Circuit Judge, 105 Mich. 499, 63 N. W. 507; City of Detroit v. Hosmer, 125 Mich. 634, 85 N. W. 2; Pickett v. Southern Ry. Co., 74 S. C. 236, 54
“In the original petition certain acts of negligence are specified. In the amendment certain other specifications of negligence are pleaded. But the cause of action is the same. * * *• We are very clearly of opinion that the statement of additional grounds of negligence is not a new cause of action. There is no departure from the original petition in the time, place, or circumstances of the casualty which caused the death of the intestate.” —Kuhns v. Wis. I. & N. Ry. Co., 76 Iowa, 67, 40 N. W. 93. “The cause of action was the homicide of the plain
“An amendment cannot be allowed that introduces a new cause of action; but, as long as the plaintiff adheres to the contract or the injury originally declared upon, an allegations of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony. * * * If you can amend by declaring for another injury occasioned by the same wrongful act, why can you not amend by declaring for the same injury as occasioned by another wrongful act? And this you certainly do when you amend by assigning a new breach of the same covenant; but you are seeking the same thing all the time, namely, damages for the breach of that covenant.” — Daley v. Gates, 65 Vt. 592-594, 27 Atl. 193. “The original declaration filed June 24, 1892, went only upon the charge that an unblocked frog was a danger to which a switchman ought not to be exposed; but on the trial that ground of action was abandoned, as the appellee knew the construction. March 3,1894, an additional count was filed, and April 20,1894, another, both of which alleged that the appellant wrong
“The most serious question raised upon this record is as to the action of the court in sustaining a demurrer to the plea of the statute of limitations to the additional count of the declaration. But after a careful comparison of the two counts, and in the light of the recent decisions, we are inclined to the view that the one is but a restatement of the cause of action set up by the other. The gist of the negligence charged in the original count is the furnishing of a defective appliance, viz., the door, for appellee, its employe, to use; and the gist of the negligence charged in the additional count is the ordering of appellee, its employe, to use a defective appliance, viz., the door in question.” — Griffin Wheel Co. v. Marks, 79 Ill. App. 87; Griffin Wheel Co. v. Marks, 180 Ill. 391, 54 N. E. 207 (Supreme Court of Illinois, affirming the Appellate Court). “Probably the explanation or reconciliation of the cases on the subject is this: That, while a distinctly new cause of action may not be inserted b>
“The original complaint averred plaintiff’s intestate’s death was caused by the negligence of fellow servants, thus failing to aver a cause of action. After the running of the statute of limitations a count was added by amendment, averring negligence of the master in selecting incompetent fellow servants, and the court held the overruling of plaintiff’s demurrer to the plea of statute of limitations was error, saying: “The statement of the cause of action was different, but the cause of action itself was identical. Injury resulting in death is what oc
“The injury was alleged to have been caused by the falling of a derrick, and that the derrick was caused to fall by the breaking of an eyebolt, which was alleged to
We think that the amendment in the case at bar'was within the lis pendens, according to the overwhelming weight of authority in other states, and that our own court is committed to- the same holding. — L. & N. R. It.
The first count of the complaint was attempted under section 27 of the Code of 1896, and the amendment was brought under section 1749. But, conceding that the first was under the common law and the other under the statute, and that there was a change from “law to law,” this would not prevent the amendment from relating back. — Pointer’s Case, supra; Lassiter v. Norfolk R.. R., 136 N. C. 89, 48 S. E. 643; Miller v. Eric R. R., 109 App. Div. 612, 96 N. Y. Supp. 245. The trial court did not err in overruling the motion to strike the amendment, and the error of sustaining the demurrer to the plea of the statute of limitations as to the third count was error without injury.
The trial court erred in permitting the plaintiff to prove that immediately after the death of the intestate the defendant placed in the mine certain water pipes.— Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784; 1 Wigmore on Evidence, § 283. It is insisted that this evidence was subsequently excluded by the court. It is true the court instructed the jury to consider no evidence except what related to count 3. This evidence may not have related to count 3; but we do not think such an order eradicated it from the minds of - the jury. It virtually left it to them to pass upon the applieaiton of the evidence to the different counts.
The trial court erred in not excluding the evidence of witness Hawkins; “He looked as if he had smothered to death.” This was but the opinion of the witness, who was not shown to be competent to give an opinion on the subject.
The trial court did not err in refusing charge 2, requested by the defendant. Whether it asserts the law or not, it was abstract.
Reversed and remanded.
Dissenting Opinion
(dissenting). — I cannot agree to the conclusion reached in this case by the majority of the Justices on the question of the statute of limitations, pleaded as a defense to the amended counts of the complaint, and I therefore dissent from their decision, and am constrained, because of the importance of the question, to express my views of the law on the subject, thereby giving my reasons for such dissent. The cause of action as stated in the original complaint is the death of the plaintiff’s intestate, resulting as a proximate consequence from the negligent failure of the defendant to furnish the deceased a reasonably safe place to Avork, in the performance of his duties as a servant and employe. In the third count, which Avas introduced by way of amendment, and to which the defense of the statute of
In the opinion of my Brother Anderson speaking for the majority of the court, after citing a number of cases of other jurisdictions, and from which extracts are quoted, it is said: “We think that the amendment in the case at bar ivas ivithin the lis pendens, according to the overwhelming weight of authority in other states, and that our oivn court is committed to the same holding” —citing L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41; Williams v. McKissack, 125 Ala. 547, 27 South. 922. “We do not consider that what w7as held in the case of Nelson v. First Nat. Bank, 139 Ala. 593, 36 South. 707, 101 Am. St. Rep. 52, is in conflict with this opinion, as the only point decided w7as that, the first count being for money had and received, the second count, being for goods sold, set up a new7 cause of action, which would not relate back, so as to intercept the statute of limitations. Therefore, if anything is said in that opinion in conflict with our holding in the cause at bar,
It may not be amiss in this connection, for the purpose of showing that the decision in the Nelson Case was not 'the result of any hasty, but of a very thorough and deliberate, consideration by the court, to state something of its history in this court. When the case was first submitted, elaborate arguments by counsel, both oral and in writing, were had. A conclusion was reached and announced, and thereupon an application was made for a rehearing, on which additional briefs were filed, and upon consideration the application was granted, and the decision theretofore rendered set aside. A second application for rehearing was then filed by the opposite party, and the court of its own motion had the cause restored to the trial docket and set down for further oral argument by counsel, and then it was, after mature deliberation, the case was decided as reported in 139 Ala. 593, 36 South. 707, 101 Am. St. Rep. 58, all of the Justices then composing the court concurring. It may also be said in this connection that no new or novel doctrine is announced in that case. The principles declared were but a reaffirmance of what had already been decided in a number of cases by this court, as may be clearly shown by a review of the cases.
In the case of Adams v. Phillips, 75 Ala. 461, this court, again speaking through Brickell, C. J., on page 463, said : “But if, in the exercise of the right of amendment, new matters or claims are asserted not within the lis pendens, if the amendment is not merely and strictly remedial, curing a defective or imperfect statement of the cansé of action in the original bill, or merely modifying or varying its allegations, the matter or claim introduced hv the amendment will not he referred to the filing of the original hill,,to the prejudice or injury of the parties against whom the amendment is made’* — citing King v. Avery, supra, and quoting from that case the extract hereinabove quoted. Again, in the case of Evans v. Richardson, 76 Ala. 329, this court, speaking through
As opposed to the foregoing cases, the case of L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41, is cited in the opinion of my Brother Anderson, and relied
It would seem, from adjudged cases of our own which I have cited above, that there is no room for judicial misinterpretation of what is intended and meant by the employment of the expression “new cause of action” where the statute of limitations is pleaded to the amendment. I think my Brothers fall into error in failing to distinguish, or rather to separate, the law of amendments from the doctrine of relation of amendment. The law of amendments is statutory, the creation of the law-making power. The doctrine of relation of amendments is a mere fiction of law — as often expressed, “relatio est fictio juris” — invented by the courts to promote right, but not to prevent it, in the administration of the law. Our statute of amendments is broad and liberal, and such has been the construction put upon it by this court;
When the statute of limitations is set up as a defense to the new cause of action, or new claim of matter, introduced by the amendment, then is the question presented, not as to the abstract right of amendment, but as to its limitation as affecting the rights of the party to claim the benefit of the statute of limitations against the new claim of matter introduced. In speaking on the question of relation of amendments, what is meant by a new cause of action, new claim or matter, not before within the lis pendens, seems to me to be misunderstood by the majority, and they have been led into error in their decision in this case through a misconception of the rule. That a new cause of action, in this connection, does not mean an independent and different cause of action, not relating to the same transaction, the foundation of the suit in the original complaint, is too plain to admit of controversy, since such an amendment is not permissible against the objection of the opposite party, although it might have been joined under a separate count in the commencement of the suit. — Mahan v. Smitherman, supra. The new cause of action, or new claim of matter, spoken of in the cases in reference to the doctrine of relation, must therefore necessarily relate to the same transaction declared on in the original complaint. In the next place, if the new cause of action, or new claim of matter, introduced hv amendment, is not within the lis pendens, then under all of the authorities the doctrine of relation will not he imputed, or
What is meant by “within the lis pendens” in the case cited? It is to be remarked .that in declaring the rule, from the language employed, it is not intended what might have been, or, perhaps, what should have been, within the lis pendens, but, on the contrary, that which is intended is, what is actually within the lis pendens? And this is still further emphasized in some of the cases by the employment of the conjunctive clause, “and within the issues between the parties.” See cases above cited. What are the issues between the parties? Certainly none others than those tendered by the averments in the original complaint, such only as it would be competent to introduce evidence to support. If the amendment be more than “merely and strictly remedial, curing a defective or imperfect statement of the cause of action” in the original complaint, and introduces a new claim as a basis of recovery, requiring evidence for its support, that would have been irrelevant and inadmissible to prove the cause of action laid in the original complaint, certainly it cannot be said that such claim, prior to the amendment, was “within the issue between the parties” made by the original complaint. As to what is meant by new cause of action, or new claim or matter, not within the lis pendens, “and not within the issue between the parties,” and such as will not be referred to the commencement of the suit, when introduced by amendment, is .still further illustrated in some of our cases, where it is said that “the statute of limitations is as available to the defendant against such new claim so introduced as if the same had been declared on in a new and original suit.” — Evans v. Richardson and Mohr v Lemle, supra. And this may be said to be one of the tests in the application of the doctrine of relation back of amendments:
Coming to the case at bar, we find the original complaint declaring on a common-law liability, the negligent failure of the defendant to furnish the injured party a safe place in which to work; while the count added by way of amendment declares on a statutory liability, under subdivision 3, § 1749, of the Code of 1896. In this there was a complete shifting of the ground of liability. In the case of Anniston, etc. R. R. Co. v. Ledbetter, 92 Ala. 326, 9 South. 73, the action was to recover against the defendant for loss of goods, and both the original and amended complaint related to the same subject matter and sought to recover the same damages; but in the original complaint the claim was made against it as a warehouseman. There was in that a case a shifting of the ground of liability, calling for the application of different principles of law and requiring different evidence. The court ruled that the amendment was permissible, but at the same time it was subject to ihe defense of the statute of limitations. In principle there can be no distinction between that case and the one at bar. In the case at bar the measure of recovery is different in the original complaint and the amendment. Under the original complaint punitive damages may be assessed, while under the amendment only such damages as are compensatory. Again, under the original complaint for a negligent failure to furnish a safe place of business, would the plaintiff be permitted to introduce evidence to show that his injury was not because of an
In the recent case of Alabama Terminal & Improvement Co. v. Hall & Farley, 152 Ala. 262, 44 South. 592, the case of Nelson v.First National Bank, 139 Ala. 590, 36 South. 707, 101 Am. St. Rep. 52, is criticised; but the criticism can be regarded only as a digression - of the writer in that case, since the learned Chief Justice concludes the criticism with the statement: “But, whether the reasoning in the Nelson Case is sound or no*, it can have no possible influence in the determination of the question here presented for consideration.” Moreover, it cannot be supposed that the justices composing the section of the court who sat in that case intended by anything that was said in the opinion, or by the decision
In support of the conclusion reached by the majority quite a number of cases from other jurisdictions are cited, and from some of these cases quotations arc made. From an examination of these cases I find that in some of them the statute of limitations Avas not pleaded as a defense, and hence the doctrine of relation back of amendment was not before the court for decision; the question being only as to the right of amendment. In some others, I find, according to my understanding of them, that the doctrine for which I contend is sustained. Of ■ the first class are the folioAving cases: Pickett v. So. R. R. Co., 74 S. C. 236, 54 S. E. 377; Harris v. Central R. R. Co., 78 Ga. 525, 3 S. E. 355; Daley v. Gates, 65 Vt. 592, 2 7South. 193; Lassiter v. Norfolk & C. R. R., 136 N. C. 89, 48 S. E. 644. Among those of the second class above referred to, I may mention the first three cases cited in the opinion of the majority; Terre Haute R. R. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277; Pratt v. Montcalm Circuit Judge, 105 Mich. 499, 63 N. W. 507; City of Detroit v. Hosmer, 125 Mich. 634, 85 N. W. 2. Pratt v. Montcalm Circuit Judge, supra, cites approvingly the cases of People v. Judge of Newaygo Circuit, 27 Mich, 138, and Nugent’s
It is said in the majority opinion that the case of Bolton v. Ga. Pac. R. R., 83 Ga. 659, 10 S. E. 352, which is cited in the Wyler Case, was subsequently in effect overruled by the case of Ellison v. Ga. R. R. Co., 87 Ga. 691, 13 S. E. 809. In this I think the majority have fallen into error. At least the Supreme Court of Georgia seems not to have so considered it, since the Bolton Case is cited approvingly by that court in the still later-case of Charleston, etc., R. R. Co. v. Miller, 113 Ga. 15, 38 S. E. 338, where the same question was under consider-, ation. The case of Union Pac. R. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, which is cited in our case of Nelson v. Bank, supra, is summarily disposed of in the opinion of the majority in the case at bar, as a case that “is based on antiquated principles and a
It is stated in the opinion of the majority that the overAvhelming weight of authority in cases from other jurisdictions is in support of the vieAvs of the majority in the case at bar. I do not find such to be the case from my investigation. On the contrary, I find the overAvhelming Aveight to be opposed to the views of the majority ; and in support of this statement, Avithout unduly prolonging this opinion by citing the cases, I content myself by referring to the brief of counsel for appellant on