149 N.E. 873 | Ohio | 1925
Suit was brought in the Ohio court for personal injuries sustained in the state of Kentucky, resulting in the death of William E. Greene. Section 10770, General Code of Ohio, provides that when death is caused by wrongful act or neglect in *550 another state, for which a right of action is given by a statute of that state, such right of action may be enforced in this state, but that the commencement of such action here must be within the time prescribed for the commencement of such action by the statute of the sister state.
It has been held by repeated decisions of this court that the Ohio courts may not take judicial notice of the statutes of a foreign or sister state, but that the latter must be pleaded and proven if recovery is based thereon. Evans v. Reynolds,
In her original petition plaintiff below failed to set forth any Kentucky statute giving her the right to maintain an action for wrongful death. No demurrer was filed to the petition, and the first time this point was raised by the defendant was after the verdict of the jury, when the railroad company under favor of Section 11601, General Code, asked the court to render judgment in its favor non obstante veredicto. At this stage of the case the plaintiff below asked the court to set aside the verdict and to grant her a new *551 trial and leave to file an amendment to her petition, setting forth the Kentucky statute giving her the right to maintain the action. This leave was granted by the trial court, and the cause remains there for a new trial, unless this court concludes that the motion of the railroad company for judgment upon the pleadings should have been sustained.
The question presented here for decision is whether, under the statutes of Ohio relating to amendments and procedure, the trial court erred in permitting the plaintiff below to amend her petition as stated, and, as a corollary thereto, whether, if the petition were amendable (since it is claimed that under the Kentucky statute of limitations the action must be begun within one year), such amendment could be made after the period of limitation for bringing the action under the Kentucky statute had expired. The answer to the second question rests upon the conclusion of this court whether the amendment to the original petition substituted a new, different, or independent cause of action, and was thus a departure from the action as first brought. For, if no new or distinct cause of action is set forth in the amendment, we think that by the overwhelming weight of authority an amendment to the action may be made after the period of limitation has run, provided the original action was commenced in due time. In such cases the amendment relates back to the commencement of the action.
"An amendment to a declaration, which sets up no new cause of action, and makes no now demand, relates, back to the commencement of the action, *552 and the running of the statute against the claim so pleaded is arrested at that point." 17 Ruling Case Law, 815.
In this state this principle has been announced in the following cases: B. O. C. R. R. Co. v. Gibson,
"The rule that an amended declaration which sets forth a new cause of action is subject to the operation of a limitation coming into force after the commencement of the action does not apply to an amendment which sets forth the same cause of action as that set forth originally."
In the case of Seaboard Air Line Railway v. Renn,
"If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action and was not affected by the intervening lapse of time."
Since the right to maintain the action was given by the statute of Kentucky, we accord to the decisions of our sister state perhaps more importance than to those of other jurisdictions, for the reason that the accident occurred in Kentucky and the right to maintain action therefor was granted by its local laws, and indubitably the Court of Appeals of Kentucky has repeatedly and consistently held that an amendment may be made to an original *553
petition after the period of limitation has passed, providing the amendment does not set up a new and distinct cause of action. Cincinnati, N. O. Tex. Pac. Ry. Co. v. Goode,
It is useless to pursue further our inquiry upon that feature of the case, for, after all, the decisive question in this case is whether the amendment to the petition setting forth the statute of Kentucky was a new and distinct cause of action, or was a substantial departure from the action as originally filed. It must be noted that at common law no right of action accrued to an administrator of a decedent in cases of wrongful death. Such a right is maintainable only under authority of a state statute. When the cause in the trial court reached the stage wherein the jury returned a verdict for damages, the railroad company undoubtedly could have insisted upon judgment in its favor for want of pleading and proof that such a statute existed in the state of Kentucky. The original petition was demurrable for that reason. However, it is now insisted by counsel for the railroad company that the substitution of the cause of action made by the amendment was one "from law to law," and that therefore it was new and distinct from that set forth in the petition. They cite a number of decisions relating to the phase whether an amendment of the character in question would constitute a substantial and basic change of the cause of action, and whether such would be permissible, *554 especially if the statute of limitation had run. In 17 Ruling Case Law, at page 817, we find the subject referred to as follows:
"Although there is lack of uniformity in the decisions, yet it is held in several of the states that an action grounded upon a right given by statute and one resting upon a right at common law, where the basic transaction is the same, are yet different and distinct from each other, so that the change from one to the other brings in a new cause of action. Therefore, where this doctrine prevails, if a party commences an action and relies upon his common-law right, he cannot amend his common-law declaration by setting out a statute and relying upon that for his right to sue and for his recovery."
Counsel for the railroad company cite decisions from various states which tend to support the principle announced in the text, although many of the cases are based upon facts different from the instant case. Many were decided on demurrers to pleadings; others presented the feature whether an action based upon a common-law liability may be amended by presenting a different case, viz., a liability arising under statute law. A case particularly relied upon by counsel for the railroad company, and which is claimed to be distinguishable by counsel for the administratrix, is Union Pacific Ry. Co. v. Wyler,
"As the first petition proceeded under the general law of master and servant, and the second petition asserted a right to recover in derogation of that law, in consequence of the Kansas statute, it was a departure from law to law."
In M., K. T. Ry. Co. v. Wulf,
In B. O. Rd. Co. v. Smith,
"On the authority of these cases we think it is clear that, when the cause of action arises under the federal statute but suit is brought under the state law, or by some person not authorized to maintain an action under the federal statute, defects in the original petition may be cured by an amendment that does not set up a new and distinct cause of action, filed after the expiration of two years from the accrual of the cause of action, as the *557 amendment will relate back to the filing of the original petition."
In other states we find authority for sustaining the right of amendment in cases similar to this, especially where there exists a broad and comprehensive power to amend pleadings, such as we have in Ohio. Those cases hold that an amendment setting forth a similar statute of a sister state is permissible, and not to be condemned as a departure from the original pleading.Lustig, Admx., v. N.Y., L. E. W. Rd. Co., 65 Hun, 547, 20 N.Y. S., 477; Nash., C. St. L. Ry. Co. v. Foster, Admr.,
"That, in any event, such an action was purely statutory, and it was incorrect to say that the effect *558 of the amendment was to change a common-law action into one based upon a statute."
A similar principle was announced in the Foster case, supra, reported by the Supreme Court of Tennessee. Suit was brought in the Tennessee court, and a new trial granted, for the reason that it developed on the trial that the killing took place in the state of Alabama. An amended declaration was then filed, setting out the Alabama statute. The defendant railroad thereupon pleaded the statute of limitations of one year. The Tennessee court held that the amendment neither changed the cause of action nor the parties to the suit, and did not deprive the defendant of any defense which it had to the original suit, "that the amendment related to the issuance of the original summons, which was issued within one year after killing."
Counsel for the railroad company have cited numerous cases which are not apposite, but are entirely dissimilar to the case here. In support of their contention they have probably cited more cases from the state of Kansas than any other. The more recent case from Kansas which is germane is Cunningham v.Patterson,
"The question presented is: Where an action is brought in this state for damages on account of a death occasioned in Missouri by the defendant's negligence, and the original petition omits all reference to the Missouri statute, may the plaintiff, after the expiration of the time within which such statute requires an action thereon to be begun, amend by pleading the statute, and recover upon the amended petition?"
The Kansas Supreme Court answers this question in the affirmative, as shown by the following syllabus:
"A petition which alleges the death of the plaintiff's husband to have been caused in another state by the negligence of the defendant, but fails to add that a statute of that state authorizes a recovery under the facts pleaded, may be amended by setting out the existence of such a statute, even after the expiration of the time within which an action thereunder is allowed to be brought."
The principle announced in the Cunningham case was later adhered to in Robinson v. C., R.I. P. Ry. Co.,
We have stated that we attach great importance to the decisions of the Court of Appeals of Kentucky upon this subject, and undoubtedly in Kentucky that court would not regard such amendment *560
to the petition as a change or substitution of the cause of action. This is shown by the reported case of Louisville N.R. R. Co. v. Pointer's Admr.,
"The plaintiff's original petition showed that the death of plaintiff's intestate occurred in Virginia, but it contained no reference whatever, to any law of that state which gives a right of action for damages for the death of a person by reason of a negligent or wrongful act of another. As thus framed, the petition stated no cause of action, because, at common law, no such right of action exists, and, in the absence of an allegation to the contrary, the presumption was that the common law obtained in Virginia. * * * But even, if, under *561 the liberal provisions of the Code of Practice, it was subject to amendment because of that omission, the amendment which was offered presented no right of action which then existed in favor of plaintiff, under the Virginia statute, because the statute which created the right, also limited the time for instituting the action, and that time had expired when the amendment was offered."
Judge O'Rear, of the Kentucky Court of Appeals, affirming the circuit court (
"Was the amendment germane to the original cause of action sued on — therefore relating back to the time of the filing of the original petition, so as to save the running of the statute?"
The holding of the Kentucky Court of Appeals is shown in the following propositions of the syllabus:
"The petition in an action against a railroad company alleged the death of plaintiff's intestate in Virginia in an accident caused by the locomotive on which he was fireman running into an obstruction on the track. Plaintiff afterwards tendered an amendment setting out Code Va., Sections 2548, 2557, 2902-2904, allowing a recovery by the personal representative of one whose wrongful injuries resulted in death, and providing for the apportionment of any damages so recovered. Held, that the amendment was germane, since it supplied the lacking element of the cause of action, otherwise sufficiently pleaded in the petition.
"The amendment was not tendered until more than a year after the accident. Held, that, since *562 the amendment was germane, the action was commenced at the time of the filing of the petition and service of summons, and was within the statute of limitation."
Substantially the same principle was announced in the case ofTexas N. O. Rd. Co. v. Gross,
The Ohio statute pertaining to the amendment of pleadings (Section 11363, General Code) provides:
"Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved."
Probably in no state in the Union is there a more liberal or comprehensive grant of power given to the courts to permit amendments "in furtherance of justice" than in the section quoted. In Spice v. Steinruck,
In the instant case the general identity of the transaction is the same. The proof that will be adduced at the next trial relating to the circumstances causing the accident will be substantially *563 similar to that offered in the first trial. It will be the same accident, the same death, the same parties prosecuting the case. The only defect in the pleading was a want of allegation and proof that a statute in Kentucky existed, permitting the maintenance of the action, but in our opinion no new or independent cause of action was substituted by the amendment, and there was no departure from the original pleading. If it be conceded that in actions for wrongful death the statutory limitation for bringing them is a part of the cause of action, it may be said that this action was brought within the statutory time, and the only purpose of the amendment was an amplification of the petition by showing the existence of another fact, viz., that the state of Kentucky, where the accident occurred, had passed a statute permitting recovery of damages for wrongful death, thereby authorizing the Ohio court to enforce such "right of action" in this state under the provisions of Section 10770, General Code.
In addition to the Ohio statute relating, to amendments, we have other procedural sections of the Code which safeguard the rights of parties plaintiff and defendant by procuring for each a trial upon the merits of the action. Section 11233, General Code, provides that a plaintiff may begin a new action within one year, if he "fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired." The Ohio Code contains a number of divisions, one of which is denominated "Part Third." Part third pertains to remedies and procedure in the courts of this state and includes Section 11363, General Code, aforesaid, giving *564 the right of amendment before or after judgment, in the interest of justice. Section 10214, General Code, provides:
"The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice."
We are therefore constrained to the conclusion that the amendment permitted to be filed was not a new, independent, or distinct cause of action from that set forth in the original petition; that the missing fact required to be pleaded and proven, notably the Lord Campbell Act of Kentucky, was merely a defect in pleading, which made the latter subject to demurrer unless amended; that plaintiff having properly commenced her action against the defendant below, the amendment could be made after the period of limitation had expired, and would relate back to the commencement of the action; and that, under the broad and liberal power given by, the Ohio statute, such amendment could in no wise substantially prejudice the defendant below.
The judgment of the lower courts will be affirmed.
Judgment affirmed.
MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur. *565