137 Iowa 577 | Iowa | 1908
After the expiration of the two years which, under our statute'of limitations, is the period within which plaintiff’s action should have been brought, and when the case was called for trial on the issues raised on defendant’s answer to plaintiff’s petition, plaintiff asked leave to file an amendment to his petition by adding thereto the averment that at the time of receiving the injury complained of and prior thereto the plaintiff was not guilty of any want of ordinary care that caused said injury, or contributed thereto. This application to amend was overruled on the ground that the amendment introduced a new cause of action, which was barred by the statute of limitations. Thereupon the defendant was granted leave to withdraw its answer in which it had specifically averred want of care and caution on plaintiff’s part directly contributing to the injury and other matters of self-defense in connection with a general denial, and to interpose a demurrer to plaintiff’s petition on the ground that it contained no averment of freedom from contributory negligence. This demurrer was sustained, and judgment was rendered against the plaintiff.
It is not easy to point out with accuracy the distinction between the insufficient pleading of a cause of action which may be made good by amendment after the statutory period of limitations, and the total failure to plead a cause of action which cannot be cured without setting up practically a new cause of action, which cannot, of course, be done after the expiration of the limitation period. In an action for breach of contract the plaintiff may amend by eliminating some of the provisions of the contract on which he has relied. Williamson v. Chicago, R. I. & P. R. Co., 84 Iowa, 583. He may aver terms of the contract different from those alleged in his original petition. Taylor v. Taylor, 110 Iowa, 207. But he cannot set up a substantially different contract as the basis of his cause of action. Van Patten v. Waugh, 122 Iowa, 302. In an action in tort to recover damages for defendant’s wrongful acts plaintiff cannot by way of amendment after the statutory period of limitation set up a substantially different wrong from that alleged in his petition.
The fact that for the want of some required averment plaintiff’s petition is subject to demurrer does not necessarily show that an amendment adding the necessary averment sets up a'new cause of action. The grounds of demurrer are statutory (see Code, section 3561), not necessarily logical, and some of them relate to matters which clearly constitute no essential part of the cause of action. The want of capacity on the part of the plaintiff to maintain the cause of action, as appearing on the face of the petition, may be thus raised, although the cause of action may be adequately averred. Likewise the pendency of an action thus appearing may be raised by demurrer, although the petition does not show the want of a cause of action, but only matter of abatement. The bar of the statute of limitations appearing on the face of the pleading is a ground of demurrer, although plainly the bar of the statute relates to the right to maintain the action, and not the existence of a cause of action, for it has always been held that the statute of limitations relates to procedure and not the right. Failure of the petition to allege the contract sued on to be in writing when by the statute of frauds it is required to be so evidenced is made a ground of demurrer, although our statute of frauds relates specifically to the admissibility of evidence, and not to the right of action itself. See Code, section 4625; Cobb v. Illinois Cent. R. Co., 38 Iowa, 601, 626. Indeed the mere failure to set out a copy of the writing or account sued on is made a ground of demurrer, although plainly such failure has
The situation in the present case was simply this: Plaintiff had failed to allege a fact which should have been alleged to prevent his petition being vulnerable to demurrer. The defendant, instead of demurring, put that very fact in issue by his answer. If plaintiff, instead of asking leave to amend, had proceeded to trial, and introduced evidence showing his freedom from contributory negligence, the court could not properly have directed a verdict against him on account of the defects in his petition. The objection might technically have been raised by motion in arrest of judgment under Code, sections 3563, 3758; but on the filing of such motion the plaintiff would have had a right to amend in order to cure the defect, and as the defect had in fact been cured by going to trial on that issue as raised by defendant’s answer, the motion should then have been overruled because the defect had, in fact, been remedied, and the issue which would have been raised by the filing of such amendment had in fact been determined. The system of pleading promulgated in our Code is not designed for the purpose of entrapping a party, but in order to effectuate justice. Doniphan v. Street, 17 Iowa, 317; Clay v. Alcock, 23 Iowa, 591. Where an issue has, in fact, been submitted to the jury, technical failure to raise such issue which might have been raised by proper pleading is cured by the verdict. Crossen v. White, 19 Iowa, 109; Long v. Valleau, 87 Iowa, 675, 683. The fact that plaintiff asked leave to amend on the eve of trial to cure the technical defect in his petition instead of going on with the case and making out his freedom from contributory negligence by affirmative evidence, as he might have done under the issue as raised by defendant’s answer, should not put him in a worse position than that in which he otherwise would have been. He did not thereby elect to treat the defect in his petition as fatal to his right to recover. Tyler
The judgment is reversed.