56 F. 458 | 8th Cir. | 1893
(after stating the case.) Conceding that ihe second count of the amended petition proceeded upon the Theory that the plaintiff might recover by reason of the negligence of the engineer, Murray, even though the defendant company had not been guilty of culpable negligence in employing him, as was charged in the original petition and in the first count of the amended petition, still we think that the circuit court erred in holding ihat such, change in the pleading was not properly an amendment, but the statement of a new and distinct cause of action.
The cause of action which was alleged in the original petition was the negligence of tlie defendant company on the occasion of the accident that had canfted the death of ihe plaintiff’s husband, and the same cause of action is declared upon in the amended complaint. In the original petition it was made to appear that the defendant company was liable for the acts of its engineer at the time of the injury, because it had employed him with full notice that he was incompetent and careless. In the second count of the amended pleading it was alleged that the company was responsible for the engineer’s acts, 'for the; further reason that he and the -watchman were not fellow servants. The averments con
In suits of this character, to recover damages for injuries sustained in consequence of another’s negligence, it frequently happens that the general charge of negligence is predicated on several different acts, either of commission or omission, and it has never been supposed that each distinct act, so relied upon, constitutes an in-dej>endent cause of action, and should be pleaded in separate counts. On the contrary, it is the common and correct practice to set forth in the same count all of the concurrent acts, whether of commission or omission, which are relied upon to establish the general charge of negligence.
It follows, we think, that the plaintiff was entitled to aver in one and-the same complaint (and in the same count, if her counsel thought proper to do so) that the defendant company was responsible for the negligent act of its engineer, both because it had notice of his incompetency, and because the engineer and the watchman were not fellow servants.. We furthermore think that, by assigning an additional reason in the amended pleading, why the railway company should be held accountable for the act of its engineer, the plaintiff in error did not state a new cause of action, but merely varied or amplified the allegations with respect to the same cause of action that was stated in the original petition.
The view which we entertain, that the original complaint was properly amended, and that the amended pleading did not introduce a new cause of action, finds abundant support in the decisions of various state courts where the Code of Procedure has been adopted. In Kuhns v. Railway Co., 76 Iowa, 67, 40 N. W. Rep. 92, the original complaint alleged that the defendant had been guilty of negligence in six respects, which were stated in detail in the complaint. After the case had been once tried, and reversed on appeal, the plaintiff was allowed to amend the original complaint by adding a further specification or averment, that the derailment complained of was due to the fact that the train was running at a dangerous rate of speed oyer a rough and uneven x*oad. It was held that the amendment was properly allowed, that the statement of additional grounds of negligence was not a statement of a new cause of action, and that the statute of limitations could not be invoked as a bar to the additional ground of recovery thus pleaded. The following authorities maintain the same doctrine: Buel v. Transfer Co., 45 Mo. 562; Lottman v. Barnett, 62 Mo. 159; Gourley v. Railway Co., 35 Mo. App. 87, 91; Land Co. v. Mingea, (Ala.) 7 South. Rep. 666.
The case of Scoville v. Glassner, 79 Mo. 449, which seems to have been principally relied upon in the circuit court, does not appear to us to be in point. In that case the original petition stated a cause of action in trover, for the wrongful conversion of personal property, while the amended petition charged that the defendant had maliciously, and without probable cause, sued out a writ of attachment, and caused the plaintiff's property to be seized under such process. It is obvious, we think, that the amendment allowed