294 N.W. 746 | Iowa | 1940
This is the second appeal in this case. Opinion on first appeal is found in
The collision complained of occurred September 7, 1935. Petition was filed July 12, 1937, and later amended by alleging additional ground of negligence. Answer by way of general denial was filed, and on trial verdict was rendered for plaintiff on October 26, 1937. Appeal to this court resulted in reversal. And on March 30, 1939, was filed Count II in which are set out the same grounds as in the original amended petition. These grounds are denominated in the original amended petition "The foregoing ground of negligence," and in Count II, the amendment filed on March 30, 1939, they are called "The above and foregoing act of recklessness." Defendant's demurrer, claiming that the action was barred by the statute of limitations, was sustained by the court and plaintiff elected to stand, judgment was rendered and plaintiff appeals. In ruling on the demurrer the trial court stated: "* * * this petition when it was originally filed was clearly based upon the claim of negligence. That is the theory on which the original case was tried, the theory on which it was submitted and the theory that the court acted upon in the trial of the first case, and it is the theory that the Supreme Court had, that the only charge made in the original petition was that of negligence. The amendment states a cause of action, based upon the charge of recklessness, and being filed more than two years after the accrual of the cause of action the court believes that the demurrer * * * should be sustained * * *."
This court so held as to the theory on which it was tried in the original case. See McCornack v. Pickrell, supra, (
Plaintiff's contention is that the original petition was broad enough to charge negligence and recklessness, and that the amendment, Count II, did not allege a new cause of action but only realleged one that had been already included in the original petition. Plaintiff in support of this claim cites various rules supported by authority, none of which, insofar as this *459 case is concerned, need be controverted; as that recovery, if the pleading, even in one count not assailed, so warrants, may be had on any of the theories supported by the evidence; that recovery depends upon what is alleged and proven; that our system of pleading is a fact system and that plaintiff may recover on as many grounds of actionable negligence or recklessness as flow from his pleaded statements of fact. But plaintiff, by separate counts or in any other manner, in the first trial, did not undertake to claim or establish recklessness, but only negligence, and the district court and this court so held.
In the portions of the opinion cited above,
A claim of recovery for recklessness involves a different *460
basis than one for negligence. It is true, as plaintiff asserts, that recklessness includes negligence but it involves more. The liability is different, the basis of recovery is different, and the legal relationship is different. Redfern v. Redfern,
The claim made by plaintiff as to count No. II, that it is an amplification of the original cause of action and not a new and independent cause, can be sustained only by showing the same legal relationship between the parties as was determined in the first trial. That trial proceeded upon the theory that plaintiff was a passenger for hire. To recover under plaintiff's present theory a different legal relationship is required — that of host and guest. But in the case of Page v. Koss Const. Co.,
Our decisions have followed the rule laid down in the Page and Pease cases. The Van de Haar case held that the charge of rape was barred when the original claim was for seduction; in the Cornick case the change was from duty of a director of the bank to know of conversion to that of participation therein; and, in the Page case, from an averment of a common-law liability of a principal to the statutory liability of a third person. Cases permitting amendment after the statute has run have been to permit the insertion of allegations inadvertently omitted, and those which amplify and are germane to the grounds previously stated. But the rule appears settled in this state that an amendment is not allowable which changes the basis of recovery from one legal theory to another, from common-law liability to statutory liability, or from liability under one statute to liability under another under the same pleaded facts.
We have examined the arguments of the parties and the authorities therein cited, but find no authorization or reason to depart from the rule laid down by our previous decisions. We are satisfied and hold that the claim under the guest statute, now made by plaintiff, is barred by the statute of limitations. Any other result, under circumstances such as in this case, would authorize the trial of cases in piecemeal, with undue prolonging of litigation.
Our conclusion is that the ruling of the court on the demurrer was correct, and the cause is affirmed. — Affirmed.
RICHARDS, C.J., and all JUSTICES concur. *462