Hagenauer v. Detroit Copper Mining Co.

124 P. 803 | Ariz. | 1912

Lead Opinion

CUNNINGHAM, J.

An examination of the original complaint and of the amended complaint reveals that the cause of action set forth in each is the negligent construction of the dam. This was the cause of all the wrong done by defendant, and all the damages suffered by the plaintiff resulted from the breaking of the dam. This was the wrong . defendant was charged in each as having committed, and the plaintiff, in each complaint, makes it appear clearly that it was the same dam which broke and" gave way, located at the same place, in the same relative position to the same mill operated by the defendant; that the same material of which the dam was constructed is the same charged in each of said complaints, the manner of construction is the same, the effect of the dam on the fall of waters within the watershed drained by the gulch is shown in each to be the same, the danger to property below is charged to be the same, the corporation responsible for the existence of the dam at that point is the same corporation, the date on which the dam broke and gave way is the same, the injury resulting to plaintiff’s property is the same, and the property injured is the same, the same amount of damages is claimed in each complaint and the property is damaged in the same manner, and in each the knowledge of the defendant of the surrounding circumstances is alleged.

The amended complaint amplifies a number of the corresponding allegations of the original complaint, and it is contended by the defendant in error that the amended complaint, which is offered to cure the original complaint by relation, so as to cut out the intervening bar of limitations, sets out that “the dam or barrier was negligently and carelessly constructed,” and was a danger “to the property of the plaintiff”; “that it was carelessly and negligently piled up in said gulch, without skill or care, and without any proper or sufficient support to strengthen the same, and without any proper or mechanical construction whatever”; that it was of great height; that the danger to property created thereby, and its careless and negligent construction, were well known to defendant, “who wholly failed and neglected to provide any means to render said dam safe, or to restrain the slimes, sands and tailings impounded by it, and to prevent the breaking of said dam and the consequent injury to plaintiff.” It alleges that the dam broke “by reason of its negligent and careless construction as aforesaid,” and that plaintiff’s injury was sustained “by reason of the negligence and carelessness of the defendant.”

In the original complaint the dam is alleged to have been “constructed of tailings loosely thrown across the said gulch, without skill or care or mechanical construction,” giving the dimensions, and “was so constructed that all of the waters falling,” etc., were “retained and held by said dam in a vast reservoir”; that the dam was so constructed without means of outlet to the accumulated water to escape, without passing over or by breaking the dam; that the dam on the day it broke, “held in one vast reservoir many millions of gallons of water;” “that said dam, by reason of the way in which it was constructed, . . . and by reason of the careless manner of its construction,” was liable to break from the accumulated waters and cause damage to plaintiff, ‘ ‘ all of which defendant well knew at the time it constructed and maintained the said dam.” That “the defendant’s said dam gave way and broke,” and the waters flooded the store and property of plaintiff, “and completely destroyed” the property of plaintiff.

When viewed as asserting a cause of action, and not viewed as a technical statement of a cause of action, as required when tested as a pleading, the original complaint, so considered, must carry the conviction to a reasonable man that plaintiff was complaining of the careless and negligent manner in which defendant constructed a dam, and by reason of such negligent and careless construction such dam was insufficient to restrain the water impounded by the dam, and that defendant knew the manner in which the dam was constructed and the menace the dam offered to plaintiff’s property—in other words, the plaintiff’s cause of action was the negligent, and careless construction of the dam. The same cause of action is asserted by plaintiff in his amended complaint, by a statement thereof, the sufficiency of which is not questioned. Such omissions and defects, in the manner in which the cause of action was asserted in the original complaint, were cured and supplied in the statement of the cause of action asserted in the amended complaint, and these amendments are claimed by defendant in error to state a cause of action as of the date of the filing of the amended complaint, and open to the defense of the statute of limitations. If the amended complaint does not relate back to the time of filing the original complaint, the position of counsel is well taken, and that opens the questions: Will it relate back, when the same cause of action is asserted in both the original and the amended complaints? What amendments will tie the two complaints together, so that one will be and be considered the counterpart of the other, and both be considered as the prosecution of one and the same lawsuit, and shut out the defense of the statute of limitations?

Plaintiff concedes the statement of the cause of action asserted by the original complaint is faulty when attacked by a general demurrer, but insists that, even so, it is sufficient to assert a good cause of action, and when a good cause of action is so asserted it is sufficient to stop the running of the statute of limitations against such cause of action, even though a general demurrer to the statement would be good; and this proposition is denied by defendant in error, who insists that a complaint held bad on general demurrer must be considered as a nullity, and an amended complaint thereafter filed, sufficiently stating a cause of action when attacked by a general demurrer, is the commencement of the suit on such cause of action, and is open to all defenses as such, thus making the test of the commencement of the action relied on the ruling of the court on the effect of the general demurrer to the statement of the cause of action. These questions have never been answered by the supreme court of the territory, to which this court is the successor by operation of law, and they are, therefore, questions of first impression in this jurisdiction.

To give to the special demurrer, setting up the statute of limitations to an amended complaint, the effect contended for by the defendant in error, would be equivalent to giving such special demurrer the force and effect of a general demurrer, and permit the pleading thereby to attack the sufficiency and the manner of stating a cause of action, which is not the purpose of such special demurrer. It does not attack the manner of stating the cause of action, but it is more to be considered in the class of pleas in confession and avoidance of the cause of action stated, be the manner of statement as it may appear, the special plea admits the sufficiency of the allegations of the pleading attacked thereby, to state a cause of action, but seeks to avoid the prosecution of such suit, and relegate the cause of action to repose and bring the litigation to an end forever. It thus directly attacks the cause of action, and does not attack the manner of stating the cause of action—the statement of the cause of action. It attacks the perfect or good cause of action in the same manner and with the same effect as it attacks the imperfect cause of action, and has nothing to do with the manner of stating the cause of action attacked. Atlantic & Pac. Ry. Co. v. Laird, 164 U. S. 393, 41 L. Ed. 485, 17 Sup. Ct. Rep. 120.

This we consider is sufficient to dispose of this ease, viz.: The cause of action defectively stated in the original is the identical cause of action sufficiently stated—reasserted—in the amended complaint, and that being the ease (and a superficial examination of the original complaint, comparing it with the amended complaint, can but convince a fair legal mind that the cause of action is the same, and no other intended or attempted to be stated), the special demurrer can reach no other question, and reaches no other question, than the question of relation existing between the cause of action contended for in the two documents, the amended and the original complaint. If the cause of action is the same, the identical cause of action, disregarding the manner in which it is stated, the amended complaint is only the continuation of the suit begun by filing the original complaint, and the statute is stopped at that point. If the cause of action is deficient, and another cause of action asserted in the amended complaint than that asserted in the original complaint, then, without regard to the manner of the statement, the statute continues to run against such new or different cause of action, so for the first time asserted in the amended complaint, until the date of the filing of such amended complaint, and of the existence of this positive rule of law there can be no doubt, and it exists both in reason and in authority. Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983, 15 Sup. Ct. Rep. 877; Atlantic & P. R. R. Co. v. Laird, supra; Motes v. Gala Valley, G. & N. R. R. Co., 8 Ariz. 50, 68 Pac. 532.

To this rule we find no dissent by any reputable court, and believe none exists. Where a paper in some respects resembling a complaint in form is filed, and the defendant is brought into court by process issued as upon a complaint asserting a cause of action, and thereafter an amended (so called) complaint is filed in the proceeding, and which does, without question, assert a cause of action, to which cause of action so asserted the statute of limitations is interposed, if it appears upon examination by the court that no cause of action whatever was asserted in the original paper filed, then, in reason and by undivided authority, we believe, the statute continues to run until such cause of action is asserted, and bars such asserted cause of action when filed as the commencement of the suit. The suit, under such statement of circumstances, is then for the first time commenced, and the first opportunity is then offered the defendant to set up such defense therein, as was the condition found in Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N. E. 266, and that line of cases. The reasons sustaining this position are so academic that we do not think a reference to any authority necessary. A paper filed, stating no cause of action whatever, has no-standing as the commencement of a lawsuit in any court, and is an absolute nullity; and any other paper thereafter filed, given the same title and number, and placed in the same file in the records of the court, cannot be considered as an amendment to a nullity, and if such paper, so filed and called an amendment, is a complaint asserting a cause of action, it is most certainly the commencement of a suit for the enforcement of such right of action, and to which the defendant under our system of procedure may enter a voluntary appearance and set up any defense he may have. Such will be found to be the situation and the condition in the Eylenfeldt ease, supra, as will appear by reference to the so-called complaint originally filed in that case, and while that court used some loose expressions about the amended complaint setting up a new and different cause of action, those statements in the commencement of that opinion are not followed up in the opinion. To say an amendment sets up a new and different cause of action is asserting that a cause of action is actually asserted in the former pleading. To say a paper states no cause of action whatever, and that an amended complaint filed to take its place states a new and different cause of action has no force whatever, no meaning whatever, as one expression nullifies the other. Evidently what the court intended to say, and what it did later, in effect, say, was that, when the original complaint stating no cause of complaint whatever was filed, the statute of limitations was not arrested thereby, and continued to run against the cause of action, for the first time asserted in the amended complaint, until the amended complaint was filed, in the same manner and to the same effect as if the suit was commenced at the time of filing such amended complaint. This is the universal rule, founded on reason and recognized by all courts, so far as we have examined, and as reported.

A complaint, asserting a cause of action in a defective and imperfect statement and manner of statement, when filed, if in time for the commencement of an action on such cause so stated, such filing of such statement is such commencement of an action thereon as will arrest the running of the statute of limitations against such cause of action, and thereafter, after a period of time has elapsed which would otherwise bar the commencement of a suit on the cause of action so asserted, an amendment may be filed reasserting the same cause of action, and supplying omissions and amplifying allegations of damage and negligence-—amend the statement of the cause of action— which amendment, when so made, is the continuation of the action commenced by the filing of the original complaint, and the running of the statute, having stopped at the time such original complaint was filed, has ceased to be a factor from that time in that lawsuit litigating that cause of action. The authorities cited in the notes to VI, I, 6, a and b, 25 Cyc., pp. 1305, 1306 and 1307, amply state and illustrate this position, and this is the question presented in the case at bar.

The identical question, we believe, was before the supreme court of the territory in the ease of Boudreaux v. Tucson Gas etc. Co., 13 Ariz. 361, 33 L. R. A., N. S., 196, 114 Pac. 547, as well as can be ascertained from the reported case. I admit a doubt exists as to this question arising in that case from a lack of a statement of the facts therein; but on examination of briefs of counsel printed in that report we find that the counsel for the appellant states the defects claimed in the original complaint is “that there is no allegation of damages, or any allegation which legally is equivalent thereto,” and the counsel for the appellee so understood the question, but expresses the defect in a little different language, thus: ‘ ‘ The complaint contains no allegation of damage, nor does it allege facts from which damage might be presumed or inferred.” The objection in the case at bar is that the original complaint alleges no negligence, nor facts from which negligence can be presumed or inferred, and alleges no duty to plaintiff, nor facts from which duty can be presumed or inferred. If it is intended to be understood that the original complaint stated no facts from which damage can be presumed or inferred, that no cause of action whatever was in any manner whatever stated therein, then such ease was not ruled by Keppler v. Becker, 9 Ariz. 234, 80 Pac. 334, for in that case the only question attempted to be decided was that the original complaint, when tested by a general demurrer, failed to state facts sufficient to constitute a cause of action, and the court, in the Boudreaux case, after stating that the same question was involved and presented, disapproves of Keppler v. Becker ease, and holds that the ease under consideration must be tested by the new or different cause of action rules, and that, as amended complaint stated no new or different cause of action, the running of the statute stopped when the original complaint was filed, thus, and necessarily, 'holding that a cause of action was, though defectively, stated in the original complaint, and in so holding we must inevitably presume that same fact was stated in the original complaint, though defectively and imperfectly, from which damage can be presumed or inferred; otherwise, without any damage' shown as arising from all the facts stated, no cause of action whatever would be then and thereby stated, and, as we have seen above, the so-called complaint would be a nullity, which could not be amended. So reasoning, we presume that the real question presented by the record is the same question here presented, viz.: What statement of a cause of action in a complaint is necessary in order to stop the running of the statute of limitations against such cause of action? What statement of a cause of action in a complaint is necessary to the commencement of an action, to which an amended complaint reasserting such cause of action, but containing more amplified and correct allegations, will relate back to such original complaint, to such commencement of such suit?

If such is the question presented by the record in the Boudreaux case, that question is answered by the court in the affirmative and should be followed by us, if the decision rests on sound reason and is supported by the weight of reason and authority; and we think it is so supported, as well by weight of reason as by the weight of precedent. We do not, however, approve of the reasoning by which the conclusion was reached in the Boudreaux case; but we do approve the result reached, in this: That the restatement of the same cause of action, imperfectly and defectively stated in the original complaint, by the filing of an amended complaint reasserting the same cause of action, filed after a general demurrer has been sustained for the reason that the facts stated in the original complaint are not sufficient to constitute a cause of action, by amending the defective statement and supplying allegations to admit necessary lines of proof, and thereby state in legal language facts sufficient to constitute a good cause of action, not vulnerable to an attack by a general demurrer, is the commencement of no new action, so as to let in the defense of the statute of limitations thereto. The facts presented by the record are so meager that we would not feel justified in relying upon that case as a binding authority in this ease in this court. Unless the Keppler v. Becker case, supra, or the case of Motes v. Gila Valley, G. & N. Ry. Co., 8 Ariz. 50, 68 Pac. 532 (the only other Arizona Territory reported cases where any question of the statute of limitations pleaded to amended complaints has been before that court), have been considered as authorities, we have no reported cases from the territorial supreme court to guide us in this case. We deem it proper to briefly refer to the Keppler v. Becker and Motes eases before proceeding to consider the question in this case further.

The Motes case was decided in 1902. The cause of action therein asserted was the personal injuries to the minor son of plaintiff, caused by the negligence of the defendant, for which wrong the plaintiff had two distinct rights of recovery, both of which were barred unless suit should be commenced within one year from the time the action accrued. The original complaint was filed within the year, asserting a right to recover in favor of the minor son for the injuries inflicted. The injury was alleged to have been inflicted on March 7, 1899. The original complaint was filed on March 6, 1900. On April 5, 1900, the plaintiff filed an amended complaint, by which he asserted his right to recover for the damage resulting to himself from the loss of the valuable services of his minor son by reason of the injury negligently and carelessly inflicted by the defendant. The court applies the rule of departure to this state of facts as laid down in the case of Union Pac. Ry. Co. v. Wyler, 158 U. S. 296, 39 L. Ed. 983, 15 Sup. Ct. Rep. 877, and holds, accordingly, that the amendment was the asserting of a new and different cause of action, which must be deemed to have been commenced at the time of filing the amendment and was barred. This line of cases has been severely criticised as too technical.

The next case considered by that court was the case of Keppler v. Becker, 9 Ariz. 234, 80 Pac. 334, decided March SO, 1905. The facts in that case are that the appellants, on January 13, 1904, filed an adverse claim in the United States land office; on the nineteenth day of February, 1904, the appellants brought an action in the district court of the proper county in support of their adverse claim, in form to quiet title under the statutes of Arizona; a general demurrer had been sustained to the original complaint; the appellants filed an amended complaint, but' of what the amendments consisted we are not informed by the reported case, and that is not necessary from our point of view to understand the case, to which the defendant filed a special demurrer setting up the thirtieth-day statute of limitations provided in section 2326, Revised Statutes of the United States (U. S. Comp. Stats. 1901, p. 1430). It appears from the statement of the court in the opinion that the statute had barred the suit when the original complaint was filed, and why any discussion was had in the premises I am unable to understand. The section 2326 is not an ordinary statute of limitation, acting upon a claim in the ordinary manner; but the law permits of thirty days after the adverse is filed in the land office, the maintenance of a special proceeding in the proper court in aid of the adverse, but when that period has elapsed the right itself is gone, and no cause of action whatever remains. The statement of the case clearly shows that the period had expired—the appellants only had from January 13, 1904, to February 12, 1904, in which to commence their action in support of their adverse. The court could do nothing more than sustain the demurrer, as the record showed on its face the cause of action was not only barred at the time of filing the amended complaint, but was barred at the time of filing the original complaint, and therefore all that was said in that case, further than to sustain the ruling and affirm the judgment, is clearly dicta, as thirty-seven days had expired after filing the adverse before filing the original complaint in support thereof, and there was no occasion to apply the rule of relation back in that case.

From the foregoing examination it is clear that neither the Motes case nor the Keppler v. Becker case, have any relation to the question presented in the case at bar. An amendment of a declaration, petition, or complaint, which sets up no new cause of action, or claim, and makes no new demand, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. 25 Cyc. 1305, and cases cited in note 61.

"Where plaintiff by amendment sets up no new matter or claim, but merely restates in a different form, more correctly and specifically, the same cause of action asserted in the original declaration, it is not a new suit, and the statute will not avail for the period between the original and amended pleadings. Where the original declaration asserts a cause of action, but states it imperfectly, and afterward an amended declaration is filed, correcting the defect, the plea of the statute of limitations will relate back to the time of filing the original declaration. 25 Cyc. 1305-1307, and authorities cited in the notes thereto, which are too numerous to set out here.

An amendment to a declaration or complaint, amplifying and enlarging upon the manner in which an accident occurred, and stating more clearly the negligence complained of, is not barred by limitations if the action was brought within the time prescribed by statute. Alabama G. S. Ry. Co. v. Arnold, 80 Ala. 600, 2 South. 337; Esrey v. Southern Pac. Co., 103 Cal. 541, 37 Pac. 500; Colley v. Gate etc., 92 Ga. 664, 18 S. E. 817; Cicero v. Bartelme, 212 Ill. 256, 72 N. E. 437; Chicago C. R. Co. v. Carroll, 189 Ill. 273, 59 N. E. 551; Swift & Co. v. Foster, 163 Ill. 50, 44 N. E. 837; Illinois Cent. R. Co. v. Souders, 79 Ill. App. 41; Lake Shore R. Co. v. Ryan, 70 Ill. App. 45; Missouri Pac. R. Co. v. Moffatt, 60 Kan. 113, 72 Am. St. Rep. 343, 55 Pac. 837; Caswell v. Hopson (Tex. Civ. App.), 47 S. W. 54; Texas etc. Ry. Co. v. Eberhart (Tex. Civ. App.), 40 S. W. 1060; Union Pac. R. R. Co. v. Sweet, 78 Kan. 243, 96 Pac. 657; Atlanta & B. etc. Ry. Co. v. Wheeler, 154 Ala. 530, 46 South. 262 (where the amendment set up different causes contributing to the unsafeness of the place where the injury occurred); Smith v. Scott, 92 Ark. 143, 122 S. W. 501; Verdery v. Barrett, 89 Ga. 349, 15 S. E. 476; Alabama G. S. Ry. Co. v. Thomas, 89 Ala. 294, 18 Am. St. Rep. 119, 7 South. 762 (stating that amendments adding new averments of fact, more clearly showing the negligence complained of, and otherwise altering the grounds of recovery, or varying the alleged mode in which the defendant had violated its duty should be allowed, and they are not barred); Swift Co. v. Gaylord, 229 Ill. 330, 82 N. E. 299 ; Swift & Co. v. Madden, 165 Ill. 41, 45 N. E. 979; North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117 (stating: “The enlargement of the allegations as to the specific injuries received, when the substantial cause of action has been pleaded, ... is not affected by the statute of limitations”); Texas P. Ry. Co. v. Davidson, 68 Tex. 370, 4 S. W. 636; Parlin & Orendorff v. Glover, 45 Tex. Civ. App. 93, 99 S. W. 592 (in which it is stated: “It is true that the amended petition is much more elaborate; but, after all, it seeks to recover the same property and upon the same. grounds, that of title and conversion, alleged in the original petition. This does not constitute a new cause of action”); Landa v. Obert, 78 Tex. 33, 14 S. W. 297; Crotty v. Chicago Great W. Ry. Co., 169 Fed. 593, on page 598 (95 C. C. A. 91), the court, after showing that it had been contended that the supervising negligence of the conductor was brought into the case by the amendment to the petition, allowed after a judgment and reversal, and after the statutory period had expired, says: “The excerpts from the petition and the amendment heretofore set forth make it plain that such negligence was intended to be, and was substantially, charged in the petition, and that the amendment, instead of presenting a new charge, merely amplified and gave greater precision to one already presented. And, this being so, the case was well within the rule that an amendment to a petition which sets up no new cause of action, demand or charge, but merely amplifies and gives greater precision to the allegations in support of the cause of action, demand, or charge originally presented, relates back to the commencement of the action, and the running of the statute of limitations against the cause of action, demand, or charge so pleaded is arrested at that point”; citing Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; Patilla v. Allen-West C. Co., 131 Fed. 680, 65 C. C. A. 508; Hutchinson v. Otis, 190 U. S. 552, 47 L. Ed. 1179, 23 Sup. Ct. Rep. 778; Thayer v. Coal Co., 129 Iowa, 550, 105 N. W. 1024, and Gordon v. Railway Co., 129 Iowa, 747, 106 N. W. 177, to which may be added Atlantic & P. Ry. Co. v. Laird, 164 U. S. 393, 41 L. Ed. 485, 17 Sup. Ct. Rep. 120, and Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658.

The Texas courts express the manner of making the comparison of the original with the amended complaint in such cases. In Texas & N. O. R. R. Co. v. Clippenger, 47 Tex. Civ. App. 513, 106 S. W. 156, the court says: “If the cause of action set out in the amended petition was a new or different cause of action from that asserted in the original petition, it was barred at the time of the filing of the former. But if the amendment in any way retained, even as a part of the cause of action asserted by the original petition, and afterward reasserted by the amended petition, it is sufficient to prevent the running of the statute after the original petition was filed”; citing Mexican etc. Ry. Co. v. Mitten, 13 Tex. Civ. App. 658, 36 S. W. 282. In Bingham v. Talbot, 63 Tex. 271, decided in 1885, it is said: “That there are distinct causes of action would seem to admit of no question whatever. If, however, there had been any allegation in the first amended petition in any way retaining, even as part of the cause of action therein asserted, that which was asserted by the original petition, and afterward reasserted by the second amended petition, that would have been sufficient to prevent the running of the statute after the original petition was filed. But such is not the fact.”

An unbroken line of Texas cases, dating from 1851, assert this doctrine, beginning with Wells v. Fairbanks, 5 Tex. 583, followed and cited in Kinney v. Lee, 10 Tex. 155, decided in 1853; Coles v. Portis, 18 Tex. 156, cited by the same court in Scoby v. Sweatt, 28 Tex. 713, 730, where the court says: “If it appears from the petition that the defendant is complained of for a valid cause of action, however defectively it may be presented, the statute of limitations in his favor will be stopped,” decided in 1866. The same principle is followed in Hill v. Clay, 26 Tex. 650; also in Killebrew v. Stockdale, 51 Tex. 529 (1879), where the court says: “Although the petition may have been bad on general demurrer for want of sufficient averments of ownership of the instruments sued on; it was a sufficient commencement of suit on those instruments to stop the running of the statute of limitations. The subsequent amendment of the petition, correcting or supplying its defects as a petition on the same notes and mortgages, was not the commencement of a new suit. The judgment is affirmed.” The same rule is recognized in Rauer’s Law etc. Co. v. Leffingwell, 11 Cal. App. 494, 105 Pac. 427, and any number of other jurisdictions, but it is deemed unnecessary to cite other cases to further illustrate the rule-that we consider settled by authority and reason.

It remains to be stated, in this connection, that as our statute of limitations is identical with article 3208, Revised Statutes of Texas of 1879, which has been in force in that state since 1841, and was adopted to all intents and purposes by the territory of Arizona in 1887 as paragraph 2310, and carried forward in the 1901 revision as paragraph 2950, the application of the statute to amended pleadings, made before its adoption as indicated, ought to have great weight, if not binding force, on this territory adopting it, and such application in such cases ought to be considered as a part and parcel of the statute, as given statutes adopted when they have been previously construed. In such case the construction is adopted with the statute, as is well known to the profession. The same applies to the California cases, as we follow California in pleadings and procedure more closely than we follow any other state, having adopted California’s Code of Civil Procedure.

The decisions of the federal courts on identical questions were absolutely binding as authority on territorial courts,, which is too well recognized to require citations to sustain. Therefore, regardless of the view expressed by any other courts, this jurisdiction ought to follow Texas, California, and the federal courts as binding, or as founded in the soundest reason. Doubtless a different view has been expressed by some other court from the view expressed by the eases cited and reviewed above; but, if so, such cases are ruled by different principles than those cases reviewed and are not convincing as authority in solving the questions presented in this record. The eases cited by the defendant in error that seem to conflict with the above eases fall within the class mentioned as not binding, or have no application to the case at bar from our view of the question presented, and for that reason we regard a review of the cases further as unprofitable.

We are therefore clearly of the opinion that the statute, of limitations ceased to run against the cause of action asserted in the original complaint and reasserted, but the facts and circumstances amplified and the defects cured by the amended complaint, and for that reason the trial court erred in sustaining the special demurrer asserting the two year statute of limitations to such amendments, and the judgment dismissing the amended complaint is reversed, and the cause is remanded to the superior court of Pima county, with directions to that court to overrule such special plea and proceed with the cause according to law.

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Concurrence Opinion

FRANKLIN, C. J.,

Concurring.—I concur in the judgment, on the ground that the amended complaint was but an amplification, or elaboration, of the cause of action imperfectly stated in the original complaint. The amended complaint did not state a new or different cause of action, and was not a departure from law to law, or from fact to fact, such as would prevent it from relating back to the time of filing the original complaint. By relating back it tolled the statute of limitations. Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983, 15 Sup. Ct. Rep. 877; Motes v. Gila Valley etc. Ry. Co., 8 Ariz. 50, 68 Pac. 532; Boudreaux v. Tucson etc. Co., 13 Ariz. 361, 33 L. R. A., N. S., 196, 114 Pac. 547.

The judgment of the lower court, sustaining the demurrer setting up the statute of limitations to the amended complaint, and dismissing the action, is reversed, and the cause is remanded, with directions to' overrule the special demurrer.

ROSS, J., concurs.

NOTE.-—As to when an action is said to be pending, see note in Ann. Cas. 1912A, 843.