*1 31; 29; July rеhearing denied Argued June reversed September IBACH JACKSON (2d) 672) P. *2 Harvey (Manning Bassett, Alton of Portland & J. brief), Manning, E. all on the Portland, and Frank appellant. *3 respondent. H. for Goldstein, Barnett of Portland, plaintiff filed KELLY, 1, 1932, J. On December the summons 2, 1932, her and on December alleged served defendant. It is com- was July plaint M. 1931, that on or about Genevieve 28, county, Oregon, in Multnomah and Callahan died plaintiff appointed and ever since has thereafter was estate; of her and that deceased been administratrix daughter kin and sole heir a now left as her next of years age. six about complaint, paragraph III
In of said it is further alleged: July in Port- 27, 1931, about the defendant “On unlawfully gave Oregon, wrongfully and and
land, large quantities M. served the said Genevieve Callahan liquors beverage purposes, intoxicating alcoholic Callahan, the said M. her, and induced Geneviеve quantities large sufficient to and drink the same ill and suffer from did cause her to become which thereby July causing 28, her death on alcoholism, acute Oregon. county, in Multnomah IV approximate result of said
“That a direct and wrongful of the said acts, and unlawful the estate damages in has suffered M. Genevieve Callahan sum of $10,000.” an answer filed 10, 1932,
On December complaint. to said September noted is it will be 12, 1933,
On filed had been more than nine months after the answer years than cause more two after a motion for accrued, action had defendant filed permitting allowing his him to order withdraw and file a demurrer. answer per- September an order made 15, 1933,
On filing mitting the of said answer and the withdrawal complaint. aof demurrer to said September filed a demurrer was based 18, 1933,
On grounds: following on the subject jurisdiction
1. That the court has no of the action. legal capacity plaintiff to sue. 2. That the has no parties plaintiff. That there is a defect of 3. facts suffi-
4. That the does not state of action. cient to constitute said demurrer was sustained 9, 1933, On October days plaintiff five thereafter within which allowed *4 plead. to further plaintiff an amended filed 17, 1933,
On October allegations complaint containing the as those set same paragraph original complaint except that forth her changed paragraph Ill thereof was and added, IV was paragraphs which said III and IV of said amended are follows:
III day July, “That on about 27th defendant enticed the said to Genevieve M. Callahan Oregon; his room in in Portland, a hotel he then wilfully, unlawfully, wrongfully and there and forced plaintiff’s intoxicating partake the said intestate liquors to such an extent she lost her sense of par- reason and volition and hеr to forced continue to intoxicating liquors take of said until she reached the knowing state of acute intoxication, well was she intoxicating liquors, unable to withstand the use of and while in a state of intoxication and unable to control movements, her known to and own action and in un- a manner plaintiff but known defendant suffering said M. Genevieve so Callahan, while brought wrongful said acute alcoholism acts of the defendant as hereinbefore set forth, sustained injuries right leg, ear, arm, her left left left hand, and in her fractured both nasal bones and there- nose, carelessly negligently after, the defendant and left the said M. she Genevieve Callahan while was said con- dition in said hotel room alone, where she died some- during night, proximate time as a result direct thereof.
IV “That death of said M. was Genevieve Callahan directly wrongful, unlawful, said wilful, caused negligent acts of wit: careless, defendant, said wilfully,
“(1) wrongfully, That unlawfully forced said M. drink Genevieve Callahan to intoxicating liquors and continue to do so de- after fendant knew that well she unable to drink more injury resulting probable without to herself and well knew that the said M. Genevieve Callahan could not probable injury consume moré without illness or resulting therefrom. *5 “(2) That the defendant under the circumstances carelessly negligently left the said M. Genevieve knowledge Callahan in said hotel room alone with the dangerous that she was ill and in intoxicated, a con- requiring dition care and attention. “ (3) carelessly negli- That the said defendant gently necessary failed to exercise the care under the protect circumstances the said M. Genevieve ’’ Callahan. On 21, October 1933, defendant filed a motion to complaint strike said amended from the files on the ground that it contains more than one cause of action separately not attempts up stated, and it to set new and distinct cause of action from that original complaint. in the
On said 21, October 1933, defendant also filed a complaint. demurrer to said amended On plain- November 4, said 1933, motion to strike tiff’s amended from the files was allowed. plaintiff On November having 18, 1933, failed and plead, refused to further an order of dismissal and a judgment in favor of defendant for costs and disburse- ments were entered. assigned
Error is
sustaining
because of the orders
demurrer to the
and the motion
complaint.
to strike the amended
making
There is no
merely
statute
it unlawful
give an adult a
intoxicating liquor.
drink of
Section
Oregon
15-105,
among
Code
its terms,
other
things,
give away
declares it to be unlawful to “sell,
any intoxicating liquor”,
or barter
etc. This has been
gift
held to refer
an
ostensible
which in fact is a
and not
sale,
to the character of transaction set forth
complaint:
Runyon,
in the
State
There it an statute, being no offense under the common it becomes law, question whether under the facts delineated complaint, wrongful have acts presented upon living, been if could decedent, damages. base action for plaintiff, plaintiff’s 2. decedent volun- Where tarily participates wrongful par- *6 act and such ticipation damage sus- contributes to the cause of the tained, an action cannot be maintained. original complaint negat-
3. The faded state facts ing participation by plaintiff’s such decedent with clarity, particulаrly sufficient with- distinctness stand the strict a construction which demurrer invokes. joined, after issue we
While would have sufficed judge think no error committed the learned trial was sustaining permitting the demurrer thereto and plaintiff complaint. to file amended argued by plaintiff’s
It is defendant that predicated some violation liquor of laws. While it is deducible therefrom (Section defendant violated the statute then effect Oregon 1930), prohibiting possession of 15-105, Code intoxicating liquor, that deduction also attends complaint. respect, In this case is to distinguished be from those cases where it is held merely purpose only holding a bottle of for the taking a drink not constitute unlaw of therefrom does (243 possession: 117 238 P. Williams, ful Or. State 683). 563); Fouts, State v. P. Or. complaints, one direct In the case at both bar, obvious disclose that inference, other reference, large quantities knowingly had of intoxicat- way ing liquor possession. in his In that and to that only in his construe- extent we concur with defendant part they pleadings that in tion of the effect these pur- predicated upon for the are the statute effective prohibited possession poses of case which this liquor. just suggests cited was that the statute Defendant by chapter repealed saving Laws of clause without thereby any right action thereon was 193.3,and that Oregon 14-1008, terminated and annulled. Code Section 1930, reads: Saving amending or re-
“14-1008. clause—Acts pealing criminal all oc- statutes.-—In cases hereafter curring part a criminal statute or a of a criminal the criminal where repealed, statute shall either amended or part statute a criminal or or the statute so amended repealed purpose for the shall be remain force prosecution, authorizing indictment, trial, coin persons punishment all viction and who shall have part violated such criminal statute or of a criminal repealed prior taking statute so amended or effect amending repealing of the act such criminal so part statute or of criminal statute.” saving This section has the same effect as a clause *7 repealing in the act. suggests
Defendant also that the com plaint attempt discloses an to base this action the provisions Oregon of 15-708, section 1930, Code provides that: * * * “Any person give any who shall intoxi- * * * person cated or habitual drunkard intoxicat- ing liquors damages resulting shall be liable for all * ** therefrom at the suit or action of wife, the parent person.” or child of such intoxicated
husband, suggestion approved. think that this cannot We allegation surviving daughter The of decedent surplusage. must be treated as mere 100 plaintiff’s
Whether the motion to strike complaint depends upon should have been sustained it set forth a whether new and different cause of action alleged original complaint, which is separately or contains two causes of action not stated. complaint merely think that We the amended amplifies allegation wrongful of administration liquor, clearly negating of more states facts decedent’s voluntary participation, specification adds one more negligence, namely, leaving decedent alone in a maimed, injured Oregon- and intoxicated v. condition: Hansen Washington (188 R. N. 216 Co., 963, 191 & 97 Or. P. 655); Doyle P. Pac. Co., 495, 521, 522 Southern 56 Or. (108 201); Osgood Osgood, (56 1017). P. 1, 6 P. Or. (See Rowland, Bramwell v. 33, 40, 41, 42, Or. 57), P. Mr. where Justice Rossman discusses the propriety permitting during trial.) amendments describing
The use of the “forced” in word change administration of does not wrongful alleged. character act cause of One only alleged. action
These views lead us to the conclusion that error sustaining was committed in said motion to strike plaintiff’s complaint. present question
This motion did not plaintiff’s whether cause of action is barred the stat question ute of limitations nor the of whether sufficient facts are stated the amended constitute questions presented by of action. Those were disposed demurrer, defendant’s but trial court only. the case on the motion to strike it is While not important appeal, suggest we venture to this the demurrer to the amended waived defects only by § therein attackable motiоn: 49 J., 832, C. 1230.
101 support In of Ms demurrer, defendant invokes principle original complaint the that where the states no thereby cause of action, the statute of limitations is not and if an tolled; is not filed within period limited the statute the cause of action principle applied is barred. TMs cannot be ato case such as the instant case where defectively
a cause of action is stated: United States Memphis v. Cotton Oil Co., 288 S. 62 278, U. S. Ct. 619), L. SpeaMng 77 Ed. through and cases there cited. supreme Mr. Justice Cardozo, the Umted States court say: there general “The is rule said to be that amendment pleading of a will take effect relation and thus against intervening relieve the bar of an limitation if identity substantially cause of action is still
the
the
prevail
same, but that the limitation will
if under
guise
of an amendment there is the substitutiоn
place
of a
wholly
new cause of action in
of another
different. Baltimore & O. S.
R.
Carroll,
W.
Co. v.
280
491,
U. S.
50 S.
182,
Ct.
the law or the form of action on that of the then dependent separate it as something writ. Another reveals aspect facts remedies, operative from writs group court a has This developed. out of which grievance phrase has .not committed itself to the view in will be definition that is of any single susceptible to the relation context or of dependent of limits of it has fixed the less, None the governed. amendment with A change increasing liberality. law action, ‘a departure legal theory .from a test. Union at times been offered as law’, to has 15 S. Ct. 285, 295, v. 158 S. Ry. Wyler, Pacific Co. U. it Later decisions have made L. Ed. 983. 877, 881, 39 one of longer accepted clear that this test is no Kansas & Texas Missouri, validity. Thus general Ry. Ed. L. 135, 33 S. Ct. 57 Wulf, 570, Co. 226 U. S. in her in 1914B, 134, suing Ann. 355, plaintiff Cas. statute for her son’s under a Kansas dividual capacity administratrix amend sue as death was allowed to ’ Act USCA, Liability under thе Federal Employers would have of limitations after statute 51-59), §§ Railroad In York another action. New Central barred 294, Ed. 122, 67 L. 340, 43 260 S. Ct. Kinney, Co. v. U. S. In Friederich ruling. in substance the same there was L. Ed. 450, 62 207, sen v. 247 S. 38 S. Ct. Renard, U. to set a buyer of action defrauded cause 1075, of action to turned into aside a contract was an argument deceit. course recover can for ‘Of damages when a defendant side, on the other but be- made the plaintiff beginning from the has had notice a claim against to enforce trying and is up sets reasons for the statute conduct, the because of specified of opinion and we are exist, not of limitations do New York rule should be Cen that a liberal applied’. 260 Kinney, page Railroad supra, tral Co. 123.” Ct. U. S. S., any it is statute, wrongful of any
Independently another continuously ply repeatedly pеrson until intoxication liquor with intoxicating person An action produced. a woman so mistreated could be maintained unless by voluntary participation therein she could herself be said to be at fault. It is amended complaint, as it bemay inferred from the original that after complaint, decedent lost her sense of reason and volition, defendant continued to administer her. If decedent had survived such an she indignity, would have had a of action right against defendant for such as she damages sustained thereby.
In discussing the ease wherein the defendants had induced plaintiff’s decedent to swallow three pints whiskey in quick succession, court supreme Texas, Mr. speaking through Chief Justice Willie, say:
“As a general
a man can
principle,
recover no
for an
damages
received at
injury
the hands of an-
оther, with his own consent, unless it arises from some
act which is in itself a breach of the peace. For in-
it
stance,
is said
Mr.
that
Cooley,
‘a man cannot
complain
nuisance,
the creation of which he con-
curred in or countenanced’. But if two men agree to
and one
fight
is injured,
the law will not excuse on
account of the consent
to the
given
assault. And ‘an
even in
injury
would
sport
assault,
if it went
beyond what was admissible in
of the
sports
sort, and
was intentional’.
Cooley
Torts,
Adams v.
p. 163;
Ind.
Waggoner, 33
531; Com. v. Colberg,
“But even in cases where no breach of the peace involved, is and the act to which consent is given matter of indifference order, the maxim of public volenti non fit injuria presupposes that is he is рarty capable assent giving to his own If injury. divested of the of refusal power by reason of total or partial want of mental faculties, cannot damage be excused on the ground of consent A consent given. given by person equivalent to in such condition is especially at when his state no consent all-—more injury. doing party him the mind is well known years, person idiot, If an infant or an or a of tender any agrees compos an act mentis, non injure person caus- him,
which he cannot ing will know perform, performance of, such him to or suffer the just consequences. It is act will be for its answerable person, knowledge poisonous if a that a as deleterious substance is without
contained in an article of food another, him, offered swallows at the solicitation character —in such cаse of who is aware of its noxious damages gives course the one who for the the food is liable injury Stratton, follows: Com. Mass. 303. are sus- “And so if one whose mental faculties spirituous pended induced to swallow intoxication is endanger liquors life, the to such excess as to his persons taking advantage ness helpless- of his condition of imposing draught and mental darkness and injury damages him must answer They injury if must answer to him such should
ensues. fall family of the destruction of and to his life; short Klein, if the result.” death should be McCue 260). Rep. Am. Texas 168 person Holding that a declares statute, * * * any consequence injured of intoxication of *11 give person right a cause of has a of action does not superior person, court of the action to the intoxicated speaking through Hampshire, Mr. Chief Justice New say: Peaslee, any urged independent that, “It further of is illegally furnishing for the defendant is liable statute, damage
intoxicating liquor, whereby the caused to argument wrongful the The is that receiver thereof. against public, the act, nature of the defendant’s party wrongdoer private him also a as to a makes Assuming by true, this is conduct. that affected such distinguished from those and that case cannot be the imposed liability manifestly the for the where criminal is private party the benefit to be as in affected, 76, 17; of (P. case of Brember the of the road S. C. s. law plaintiff 374), v. when 67 N. H. still cannot recover Jones, the appears that of a reasonable man, the conduct place in the the would avoided decedent, have the wrong v. Grove, 236; done. Bresnehan v. v. 71N. H. Brember supra; Taylor N. 410.
Jones, Thomas, 77 H. “It must inferred the nature the trans- only nоthing actions avoid the involved Landon not did illegal he act, defendant’s but that was a participant well-wisher to the deed. He was cooperating acceptance his transaction, and was neces- sary Argument complete gift. illegal the is advanced incapable standpoint from the that an inebriate is proved, appeared resistance. If such fact were if it responsible in a Landon was condition not to be accepted liquor, argument for his the acts he the when applicable.” Hoyt would be N. H. Tilton, 81 688). Atl. person death “When the is caused wrongful personal act or omission of another, representatives at law may of the an former maintain action against might latter, therefor if the former against have an maintained had he action, lived, injury latter, donе the same act or omission.” Oregon Section 5-703, Code 1930. alleged
It is in the amended that defend- wrongful ant’s acts caused decedent’s but it is death; alleged not that the administration of the after decedent had her lost sense of reason volition, namely, the administration intoxicant which voluntarily willingly par- decedent not have could ticipated, proximate was the cause of death. decedent’s It of decedent, abandonment having voluntarily duty defendant after assumed ordinary exercising safety care for her welfare and inducing proximate guest her to become his was the
106 The to the of decedent’s death. demurrer cause overruled. should be the circuit For the stated, judgment reasons for such and cause remanded court is reversed this inconsistent not proceedings may proрer further herewith. JJ., J.,C. concur. Rossman, and Belt
Rand,
September
rehearing
for
1934
Petition
denied
Rehearing
eor
Petition
On
defendant
In
KELLY,
petition
rehearing
J.
fails to
urges that
again
plaintiff’s original complaint
that an inference from
action,
state a
insists
that after decedent
lost
of the complaint,
language
continued
her sense
of reason
volition
unwarranted,
contends
her,
to administer
in
that
circuit court
this court erred
holding
motion to
committed error
defendant’s
sustaining
files, argues
strike
amended complaint
the amended com-
that this court erred
holding
thus relieving against
relation
takes effect
plaint
limitation, and
this
suggests
of an intervening
the bar
the demurrer
erred in holding
court
overruled.
should be
amended complaint
not
in defendant’s
authorities,
cited
The following
before
cited in the
us:
petition
are
brief,
original
Louis &
Co.,
L.
Fed.
S.
464;
N.
157
St.
Ry.
Hall v. &
193 Fed.
Delaware &
689;
R.
v. Loughmiller,
F.
Co.
531;
Fed.
Noland
(2d)
Jennings,
Co. v.
Hudson
Bank,
(2d) 45).
Kan. 261
P.
State
Union
are cited
de-
authorities, which
following
The
said peti-
are
cited in
again
brief,
fendant’s
Shaver,
Montgomery
1298;
J.
17 C.
503;
49 C.
tion :
J.
*13
923);
(66
Co.,
244
P.
Foste v.
Ins.
26
40 Or.
Standard
Hospital,
(38
617);
v.
191
449
P.
Foster
St. Luke’s
Or.
(60
803);
Louis,
Ill. 94
N.
v.
Bouvier’s tells us that the condition of a person whose mind is affected the immediate use intoxicating of drinks, which condition is known to profession presents drunkenness, the medical va- degrees intensity ranging simple rious of ex- hilaration to a state of utter unconsciousness and in- sensibility. From the source, same learn that we popular phrase applied the term drunkenness is only degrees of it in those which the mind is mani- festly operation. stages, disturbed in its In the earlier frequently hаppens only it that the mind is not not extraordinary but disturbed acts with clearness, promptitude vigor. thoughts In latter, ob- viously succeed one another without much relevance perceptive coherence, active, faculties are but impressions they passed are if misconceived as through distorting powers medium, the reflective any degree efficiency. to act cease with of Some of stages may easily recognized; the intermediate be but always possible is not to fix the exact moment they persons pe- one another. In when succeed some culiarly presents a fit of constituted, intoxication few any stages, rapidly if of these successive and the mind actually self-control, its and for loses the time is paroxysm though maniacal as if in frenzied, may comparatively drink amount small. ,108 (Rawle’s Dictionary Bouviers’ Re- I,
. Volume Law subject, vision), p. 619. “Drunkenness”, plaintiff’s belonged decedent to the class Whether persons liquor, consumption in their under- who, go varying degrees intensity, intoxication in or was persons rapidly one of self-control, those who lose their certainly a time came before she died decedent when power. did lose control of her will support To com the demurrer to the plaint, large quan necessary it is to infer that all of the liquor alleged given tities have been decedent lost her defendant was administered decedent before sense of reason and volition. *14 determining applicable the strict rule the
Under sufficiency pleading demurrer, tested when we think that such an should be inference drawn. the more liberal rule obtains after issue Under joined upon clearly the it is inferable frоm the facts, language complaint quoted original opin- in the of the liquor part given of the was decedent ion herein part passed the crucial and of it after she had before period conscious volition to irre- of transition from sponsible intoxication. to assert that the inference favorable venture
We an than the one to is no less inference defendant allegation plaintiff. to There is no direct favorable liquor complaint that all the in the have given administered her been decedent was before processes intoxication; became disturbed mental requires us to so infer. rule There is biit the strict allegation part of the was ad- no direct lost control of but herself; after decedent ministered permits to so infer. us rule the liberal precedent no stаtes that he finds cited Defendant opinion effect that a cause of action was stated in com- plaintiff’s original complaint. again We Klein, mend the 60 Tex. to defendant case of McCue v. Am. As the Rep. 260). quoted opin- ion, is there stated:
“And so if one whose mental faculties are sus- pended intoxication is induced swallow spirituous to such as to liquors life, excess his endanger per- sons advantage his condition of taking helplessness and mental darkness imposing draught upon him must answer for the that en- damages injury sues. They must answer to him if such injury should fall short of the destruction of his if life; family death should result.” be the
We stated in the and will re original opinion state here on December filed 10,1932, answer to said That complaint. answer remained file for nine months. all that time issue During joined the facts and liberal rule of construc tion could only be invoked in testing sufficiency of the complaint. Defendant therefore affords us precedent that under such concluding liberal rule complaint would At it is upheld. least, evident that defendant was to submit unwilling question when the record required a liberal construction of the because complaint, defendant, after nine waiting months, until expiration the period pre scribed by statute for such instituting action this, *15 an procured order him to permitting withdraw his answer file a demurrer to the complaint, thereby the rule rendering strict of construction to available him.
Defendant that he is complains being of deprived to the the of the right plead defense statute of limita- tion. seems be He to unmindful that the record dis- closes that he until after waited the expiration of the statutory period within which actions of this kind
may prosecuted securing the'effect before order change of which was to rule of the construction liberality thereby plaintiff’s rendering to strictness complaint although for the valueless, nine months complaint cause had at issue been and the invulnerable. n Themandate of simple justice prevents opening the a'way permit interposition aof in the of case such that defense. again part urges of this
Defendant error on the holding in that court in sustain- court the trial erred plaintiff’s ing defendant’s motion to strike amended grounds complaint from the files. There were but two (1) assigned support That the of this motion: in complaint contains more than one cause amended attempts up (2) that it to set new action, and right plaintiff, cause of aetion. The when distinct plead filing complaint, to an additional an amended negligence specification is conceded. alleged caus the
The case is one based Despite by wrongful ing act. state of death defendant’s original contrary, designated we it in ment so Any negligent opinion here. and venture reiterate compris with and of defendant connected act acts plaintiff’s complaint part gravamen ing of the incorporated could be of decedent caused the death alleged complaint. amended It is decedent, abandonment that defendant’s alcoholism in a state of acute was while decedent brought wrongful defendant, acts of proximate It of her death. gave in decedent that defendant quantities large as to cause
toxicating in such brings particu Certainly acute alcoholism. negligence rule specification under the conceded lar suggestion dissipates stated; above *16 respect cause of is set a new and distinct action complaint. in the amended forth negligence or breach of is a violation One definition owing by duty person The ad- one to another. of person to alcoholic ministration one another of liquor only, quantities beverage purposes for in such duty to of a tortious is a death breach guest had act, abandonment who been maimed injured helplessly having after been made drunken duty. her host is another breach venture to We suggest elementary prin- these are ciples upon unnecessary precedents, it is which to cite and, further, that it is the function of the court to litigants declare the not to law show where find it. jurisdictiоn, In this the common law forms ac- Oregon tion are not retained: Section 1-101, Code may properly designate Here 1930. we this as an damages wrongful action for death.
16. Whether constructive force or actual force, or no employed, duty at force all was the violation of is alleged, shown the facts both complaint. nothing in the amended There is in either governing inconsistent with the rules an ac- trespass tion of on the case. general
“As a rule action on the case will lie injury negli- where the is the effect the defendant’s gence although non-feasance, mere the force used Subject, or direct.” R. 983-4, immediate C. L. Trespass Case. part
The matter of forcible conduct on defendant’s not is determinative of whether different cause of is action stated the from that original complaint. is stated The test negligence part whether on defendant’s has been pleaded complaints. in both say in such
To that the administration large quantities not as to cause death is a breach duty being every other which one human owes *17 namely, being in contact, human with he comes whom injury, duty ordinary prevent the to observe care rudimentary principles is to shock the fundamental and decency For of and order. this reason we hold that duty pleaded original so in the com breach of was duty plaint. of is in the The same breach complaint. do hold not recede from our amended We complaint by ap original ing, from the however, that plying construction, of inference a strict rule the guilty negligence, of herself, was also decedent, change does not the could drаwn. That inference be remedy plaintiff’s form nor the of affect character rights governing principles and her in relation rules complaint. to her amended urges that this court erred Defendant also holding amended demurrer the state overruled. Defendant volunteers should be question To this was not before the court. ment that quote pages point, and of defendant’s this we original brief: question of statute is involved what
“However, underlying question importance, on is little simply appeal com- this: Does-the ‘amended’ this is entirely and plaint distinct cause out new set original complaint, out from that set action The the statute limitations? so, it is barred if answer must be in the affirmative.” page herein, brief 19 of defendant’s On capitals: following printed in full statement find the we up new en- sets “The by the tirely is barred of action which different of limitation.” statute
Pages are 19 to both of said brief inclusive, argument upon devoted to a citation of authorities and point. only it is remembered that the means When question which the limitation could statute of brought through be court the attention complaint, office of the demurrer to the amended apparent verging must be that defendant is incon- sistency making the statement that demurrer said not before the court. pass upon
It is true trial that the court did not that demurrer. that there could felt, however, We impropriety indicating thereupon no our views after thorough briefing argument such a thereof plain- defendant. We called attention to the failure of allege intoxicating tiff to that the administration of proximate was the cause of the death of dece- *18 says question dent. We nоte that defendant that no sufficiency was raised as to the of the amended com- plaint to state a cause of action. As stated in the ground upon fifth demurrer, the which it is based, is complaint “That follows: amended does not state facts sufficient to constitute a cause of action.” orderly procedure In the which the learned and ex- perienced judge trial will this follow, demurrer will questions thereby be considered and the raised will be necessarily require decided. That will the court to determine whether cause of action is stated complaint certainty, amended sufficient with definite- ness and exactitude to withstand attack demurrer. think While we the is not to demurrer, vulnerable it would not be an abuse of permit discretion to an amendment thereof with ref- proximate erence causе.
Defendant indicates that the texts and decisions original ignored by cited him in his brief were this
,114
court. In that he is mistaken. text Every and every decision cited were read and considered. carefully Those cited in again defendant’s petition rehearing have been again read. Those cited in the petition not cited in the brief have been read carefully and considered.
We are reluctant to comment these upon authorities because, by so, extend this doing we opinion point and, prolixity; yet, is entitled to know that we have to his given cause and to his thereof presentation the best and the most thought conscientious consideration of which we are capable.
The two citations to Corpus Juris refer to two sections thereof in which general statements are One those grouped. general statements found on 503 Vol. 49 is as page follows: however, a cause of action is “Where, defectively insufficiently stated, amendment perfect statement is permissible.”
Another of those general statements at appears of section beginning page 1297 Volume 17 C. J. Defendant cites page 1298 which the of said remaining portion section is found. We quote the statement at the of said section: beginning declaration or
“Where the states a good cause of an amendment action, which does not set up a new action but makes cause of conform pleadings evidence, or which cures a formal defect, may be allowed and such amendment properly relates back to the commencement of the action and be made may *19 even after the limitation has period expired.”
The is also аnnounced principle that it is error to an amendment which sets new cause of permit up action. Shaver,
Montgomery
(66
Or.
P. 923),
in an
holds
suit
restrain defendant.
injunction
occupying
premises,
certain
where the
larger
is amended to include a
tract, the suit will be
day
deemed to have been commenced on the
of the
determining
amendment
whether defendant had
acquired
possession
portion
title
adverse
to the
original complaint.
the tract not included in the
(38
Foste
Co.,
Standard Insurance
Foster v. St. Luke’s 191 111.94 N. E. 803), announces the original doctrine that where the declaration fails to state a an action, declaration does not relate back and hence the statute of limitations is a bar.
Elrod v.
St. Louis & S. F. R. Co.,
Kramer v. Gille, 140 Fed. 682, holds that where the original petition filed a state court the receiver corporation alleged that defendants, who were corporation stockholders directors of the at a time when it was sold par insolvent, their stock to it at value cash in fraud of sought its creditors and recover sum so recеived defendants, amend- ment not allowable after removal of the cause to alleging the federal court exchanged defendants goods their stock for a stock of of a stated value, which *20 116 by corporation, owned the stood in name but the
another. Co.,
The doctrine Hall v. Louisville & N. R. 157 chang Fed. is that an a 464, amendment of declaration ing beneficiary bring the the is in action effect the ing of a new suit.
Tiller v. Co., St. Louis & F. R. 189Fed. 994, S. holds original petition by that where an filed a for husband injuries by to his fire to have been out wife set by company approaching railroad their dwelling charged suffering mere mental dissociated physical injury to fire, due and therefore failed to state a cause of could action, it not be amended by inserting allegation after limitations had run an physical injury due to the fire. Loughmiller, F.
St. Louis & S. R. v. Fed. Co. 193 689, holds that action based on where a statute of jurisdiction a sister and no referenсe whatever is made petition any statute or claim based thereon prescribed until the time limit in the ex statute has right pired any all of action thereunder is lost and attempted amendment thereafter is as inefficient restore or revive lost cause of action as would be a new action then instituted
Hills 211 al., & Co. Hoover et Fed. an 241, nounces the rule where a second cause of action was added amendment, the statute of limitation was against not tolled such second cause of action pendency suit the first. Ry. Wyler, (15 Pac. Co. v.
Union
We the second of the Railway Air S. Renn, Seaboard Line U. 1006): Ct. 60 L.
S. Ed. “Allegations in a suit a North railway employee Carolina Court to recover personal injuries pany’s *21 through railway suffered the com- railway negligence, company op- that the was erating railway Virginia, a in North else- Carolina, and plaintiff employ, that in where, was its and that, when injured, occurred in of duty, injury he was the line of and that the Virginia by right reason defect in the way, point, although imperfectly, ac- to a cause of Employers’ Liability tion under the Federal Act of April (35 Chap. Comp. 22, 1908, Stat. at L. 65, 149, 8657), stating Stat. 1913, Sec. so that an amendment distinctly engaged injury, that, at the time of the defendant was plaintiff employed in- com- interstate merce, did not a introduce cause of action new which years’ pre- barred, would be because the two limitation elapsed, scribed section 6 had then but such amend- merely expanded alleged amplified ment what was support of the cause of action, related back commencement the suit.” Jennings
Delaware &
v.
al.,
Hudson Co.
et
64 Fed.
(2d)
holds
a
second amended statement of
alleged
boy
injured by
claim, which
that a
was
a train
public crossing, alleged
at a
a different cause of action
alleged
than that
in the first amended statement which
alleged
point opposite
that the accident occurred at a
postoffice
which was about 500 feet
from
crossing.
point
The court there note that at the
men
boy
tioned in the first amended statement, would
trespasser
a
only
have been
who could recover
injury
crossing
or wilful
wanton
while at the
he would
wayfarer
have
a
been
whom defendant would owe
degree
higher
of care.
Bank,
Noland Union Stаte
was by plaintiff deposited dis- were bank defendant’s' causing plaintiff to arrested, honored by alleging pleading amended and this was partnership dishonored checks were drawn plaintiff funds in said bank a member was belonging partnership does not relate back to said the action. commencement of quote opinion in that case:
We up a different amendment set that the “It is shown negli- pleaded. It substituted one first tort than was gent charge on different based for another recovery, ground parties and where different with appears open of the statute to the defense it is * *” * limitations, supra, Co., F. R. Louis & S.
The case of Elrod St. part support position with reference defendant’s charging plaintiff’s abandon *22 unwilling are but we dеfendant, ment of decedent with the it is in conflict it because to be controlled original opinion. Oregon cited in the cases They point. except are not in one, cases, The other affecting title those cases classes, one, fall into three no cause of property, cases wherein two, those to real original pleadings, and three, in the action is stated pleading introduces cases wherein those action from cause of and different a new or substitutes original pleading. forth the one set exception the case of noted is Seaboard above The supra, Bailway announces and Benn, Air Line by this court. herein applies announced the rule opinion. adhere We judgment rehearing denied, petition for The and the cause remanded. reversed court circuit