80 Neb. 250 | Neb. | 1907
Lead Opinion
On tbe 14th day of April, 1903, the plaintiff: commenced this action in the district court for Douglas county against the defendant to recover damages for a personal injury, alleged to have been sustained on the first- day of July, 1899. To the petition filed by the plaintiff the defendant interposed a general demurrer. On the 21st day of March, 1904, an amended petition was filed, and on the dayfol
The first question for determination is as to whether or not the court erred in sustaining the motion to strike the first amended petition. In order to determine this question, it becomes necessary to examine both the original and the first amended petitions. In the original petition the plaintiff alleged the corporate capacity of the defendant ; that it was engaged in operating a smelter in Omaha; that it had succeeded “to the rights, property and liabilities of the Omaha & Grant Smelting Company”; that the defendant is now the owner of said smelting property, and running a smelter; that on or about the first day of July, 1899, “the predecessor of the defendant herein owned and operated” the said smelter. Then plaintiff averred that “he was employed by the predecessor of the defendant, and was working for them as a common laborer on or about the 1st day of July, 1899, and that he was under the direction and control of John T. Wolfe, a foreman of said party, and a foreman of the defendant herein”; that while he was so employed for the predecessor of said defendant under said foreman, on or about the 1st day of July, 1899, “he was instructed by Wolfe to take out a broken jacket, and put on a new jacket, from a hot furnace,” etc. Then follow the allegations of his injury and the extent thereof, closing with the following: '“That said injury was the result of the carelessness of the defendant and their foreman, and was without any negligence on the part of the plaintiff.” In the first amended petition it is charged that the defendant at the time of the injury owned and operated the smelter, and that the plaintiff was in its employment, and acts of primary negligence were charged to the defendant, which caused the injury complained of. There is no question raised as to the first amended petition stating a cause of action against the defendant. Appellee contends that the amended petition sets forth a different cause of action from the original
The rule is well settled that an amendment should not be permitted for the purpose of setting up a new cause of action; but this does not forbid the amplification of the original cause of action. Nor does it prevent an amendment whereby a cause of action would be stated, when none Avas stated in the first instance, if it appears that it is the same cause of action that was attempted to be set up in the first instance. The court will be liberal in alloAving amendments when the cause of action is not totally different. Bliss, Code Pleading (2d ed.), sec. 429. “Where a proposed amendment consists of neAV matter relating to the subject of the action as set forth in the complaint, and is not a neAV and independent cause of action, the fact that the statute of limitations has attached to it pending the suit is a strong reason for alloAving the amendment instead of refusing it.” 1 Enoy. PL & Pr. 518, and authorities there cited. “The courts are not entirely agreed as to the right of the plaintiff to substitute a differ
Appellee contends that the order of the trial court in permitting plaintiff to Avithdraw his consent to the sustaining of the demurrer to.the original petition did not have the effect of setting aside the order sustaining the demurrer, and that, as plaintiff took no exception to the ruling of the court in sustaining the demurrer, he has no standing in this court. If such were the rule, then, in
We think it therefore follows that the trial court erred in striking from the files the amended petition and in rendering judgment of dismissal, and that the judgment should be reversed and the cause remanded, Avith instructions to restore to the files the first amended petition.
By the Court: For the reasons given in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded, with instructions to restore to the files the first amended petition.
Reversed.
Rehearing
After the opinion reported ante, p. 250, was filed herein, a rehearing was allowed. A history of the case may be found in the former opinion. In the original petition plaintiff pleaded an injury received by him through the negligence of a third party, the Omaha & Grant Smelting Company. He sought to charge defendant therewith by alleging that defendant succeeded to the rights, properties and liabilities of such third party. Following this allegation the plaintiff specifically set forth the nature of the negligent acts complained, of on the part of the Omaha & Grant Smelting Company and on the part of their foreman, Wolfe. He alleges that said Wolfe is also the foreman of the defendant herein, but definitely sets forth that it was while the plaintiff was employed by defendant’s predecessor that he received the injury complained of. After making these specific allegations, the plaintiff alleged “that said injury,” meaning necessarily the injury inflicted through the carelessness of the Omaha & Grant Smelting Cpmpany, “ivas the result of the carelessness and negligence of defendant and their foreman.” A de
If recovery may be had under the original petition, it is because defendant succeeded to all the liabilities of the Omaha & Grant Smelting Company. More than four years after the alleged injury, the plaintiff filed his amended petition, charging the defendant with negligence. He set.forth the same injury as that alleged in the original petition, except that he now alleges that it was inflicted by defendant instead of its predecessor. If this is
In Buerstetta v. Tecumseh Nat. Bank, 57 Neb. 504, it appears that the original petition filed therein alleged that the plaintiff had deposited with the third party, a bank, certain money represented by certificates of deposit, which remained unpaid. She sought to hold defendant by alleging that it succeeded to the business of the third party, and its liability to plaintiff. Later plaintiff filed an amended petition containing additional allegations charging defendant Avith fraud. It was held that the additional facts pleaded in the amended petition constituted a separate and distinct cause of action independent from that stated in the original petition, and that the statute of limitations against the cause of action pleaded in the
The rule controlling the amendment of pleadings is liberal, but from the great weight of authority and the better reasoning it will not be expanded to such an extent as to permit the bringing in of a new or independent cause of action. A cause of action alleged in an amended petition, although founded upon the same injury as that described in the original, is a different cause of action, if it is dependent entirely upon different reasons for holding the defendant responsible for the wrong alleged. In Kuhns v. Wisconsin, I. & N. R. Co., 76 Ia. 67, cited in our original opinion, an amendment was permitted after the bar of the statute, but such amendment was, as it appears in the opinion of the court, “nothing more than a more specific statement of the averment in the original petition.” It appears therein that the amendment did not attempt to allege a reason for the defendant’s liability to
The sustaining of the demurrer to the original petition is assigned as error. After the second amended petition was striken from the files, the plaintiff withdrew his consent to the first order of the court sustaining'a demurrer to the original petition, so that the case came for hearing again in the lower court upon that demurrer. As above stated, the allegation charging the defendant with liability is that it ha« succeeded to all the rights, properties and liabilities of the Omaha & Grant Smelting Company, which inflicted the injury complained of in the petition
It follows that the court committed no error in striking the second amended petition, which was substantially the same as the original; nor in dismissing the case.
We recommend that our former opinion be vacated, and the judgment of the lower court affirmed.
By the Court: For the reasons given in the foregoing opinion, the former opinion is vacated, and the judgment of the lower court affirmed.
Judgment accordingly.