126 Md. 194 | Md. | 1915
delivered tbe opinion of tbe Court.
This case is before us for tbe second time. Tbe first appeal was taben from tbe action of tbe Circuit Court for
There was no final order or judgment on the first appeal from which an appeal could be taken, and the defendants' motion to dismiss prevailed, and the appeal was dismissed by this Court, on the 4th of December, 1914. (See same case, No. 79, Court of Appeals, October Docket, 1914.)
The case is now properly before us on the plaintiffs’ appeal from a final judgment in favor of the defendants and from which judgment the plaintiffs have taken this appeal.
The questions in the case arise solely upon the pleadings. They are not only somewhat lengthy, but positively voluminous, and the record contains numerous demurrers, pleas, motions, replications and exceptions.
There were four declarations filed in the case, one original and three amended ones, claiming damages from $3,000, in the first, to $5,000, in the third, and to $6,000 in the fourth.
These declarations were separately demurred to by each of the defendants, and the demurrers sustained, except to the plaintiffs’ third amended declaration, and to this, they were overruled. Thereupon, each defendant filed seven pleas> and the plaintiffs demurred to each of these pleas except the first, which was the general issue plea. These demurrers were overruled, and the plaintiffs refusing to reply to the defendants’ pleas, a judgment, by default, was entered against them in favor of the defendants.
The pleadings involved at the trial, on the amended declaration as shown by the docket entries are as follows: Eeb. 19, 1914, leave granted to file amended declaration, and amended declaration filed. March 25, 1914, demurrer to B. & O. R. R. Co. and demurrer of Am. Bridge Co. to 3rd amended declaration. April 10, 1914, demurrer of each defendant heard and overruled, with leave to each defendant to plead. April 13, 1914, plea of B. & O. R. R. Co. and plea
In the view we take of this case, it would answer no good purpose to discuss in detail or at length, the various questions of pleading sought to be raised by the record because it is clear that if the defendants’ sixth and seventh pleas, to the plaintiffs’ third amended declaration are good and valid pleas, they constitute a good defense, and would defeat the plaintiffs’ - right of recovery.
The sixth and seventh pleas are pleas of limitations and are as follows:
(J) That the alleged cause of action did not accrue within three years prior to February 19, 1914.
The Court below overruled the demurrers to these pleas and held that upon the record, they presented a valid defense to the plaintiffs’ action, and in these rulings we concur.
The suit, it will be seen, was brought by the plaintiffs, residents of Harford County, against the defendants, The Baltimore and Ohio Eailroad Company, a body corporate, operating a line of railroad in the State, and The American Bridge Company, a New York corporation, but doing business in this State.
The original declaration was filed on the 18th of January,' 1913, and the suit was instituted for the purpose of recovering damages for the alleged negligence of the defendants in the location, construction and maintenance of a bridge across the Susquehanna river between the counties of Harford and Cecil, near Havre de Grace, Maryland," whereby the natural flow of water and free passage of ice down and along the river was impeded and obstructed and which caused the ice to gorge in the river, overflow and damage the property of the plaintiff on or about the 23rd of January, 1910.
The conclusion of the original, the first and second amended declarations, is in substance as follows: And the plaintiffs say that the damage set forth in the above several coimts and in each of them, was caused by the negligence, unskilfullness and want of care on the part of the defendants or either or both of them, their officers, agents, servants and employees, and without any negligence or want of care on the part of the plaintiffs.
On the 19th of February, 1914, more than four years after the alleged ice gorge, the plaintiff by leave of Court, filed a third amended declaration, which was the fourth declaration in the case, changing the cause of action from one in case for negligence to one in trespass to real and personal property.
' This brings us to the controlling question in the case, and that is, whether or not the plaintiffs’ third amended declaration filed on the 14th of February, 1914, so changed the cause of action as to* entitle the defendants to plead the statute o*f limitations thereto.
The rule is well settled in this State, and in other jurisdictions, that where an amended declaration introduces a new or different cause of action and makes a different claim and demand, it is equivalent to a new suit, upon a new cause of action, and opens the case to the bar of the statute of limitations and the plea is proper and available, and this rule applies although the two causes of action arise out of the same transaction.
Tbe rule has been enforced and applied, in tbe following ■cases in this Court: Schultze v. Fox, 53 Md. 37; Western Tel. Co. v. State, 82 Md. 293; Hamilton v. Thirston, 94 Md. 253; Di Giorgio Co. v. Stock, 116 Md. 201; Schuck v. Bramble, 122 Md. 411.
Tbe decisions of the Supreme Court of tbe United States and many of tbe appellate Courts of tbe States, sustain and announce tbe same doctrine. Sicard v. Davis, 6 Peters, 140; Texas Pac R. Co. v. Cox, 145 U. S. 593; Union Pacific Ry. v. Wyler, 158 U. S. 285; Johnson v. District, 1st Mackey, D. C. 428; Railroad Co. v. Smith, 81 Ala. 229; Mumma v. Mumma, 92 Atl. Rep. 504.
In tbe case at bar, it will be observed, that tbe original and two amended declarations allege that the damage set ■out therein was caused by tbe negligent location, construction and maintenance of tbe bridge of tbe railroad company by both tbe defendants. Tbe last amended declaration proceeds upon an entirely different theory of liability and changed the plaintiff’s right to recover from negligence to trespass to real and personal property with counts iu .case for tbe indirect injury.
It is, therefore, clear that tbe third amended declaration (tbe fourth declaration), was based upon a new cause of ■action and was equivalent to a new suit and tbe defendants under tbe authorities cited, bad tbe right to interpose tbe qdca of limitations as a defense to tbe new case against them.
As to the plaintiff’s contention that the pleas of limitations are defective and bad in form, because they each conclude-“prior to February, 1914” instead of “before this suit,” we need only say, that the pleas are set out in the opinion and it will be seen that they sufficiently state the defense relied upon by the defendants, to comply with the statute.
By section 3 of Article 75 of the Code, it is provided, that any plea necessary to form a legal defense shall be sufficient without reference to mere form, this to-apply to replications, rejoinders and all subsequent pleadings. Section 2 of Article 75, Code of P¡ G. L.
By section 24 of Article 75 of the Code, it is also provided, “the forms of pleadings which follow shall be sufficient and the like forms may be used with such modifications as may be necessary to meet the facts of the case, but nothing herein contained shall render it erroneous or irregular to depart from said forms so- long as substance is expressed.” Gott v. State, 44 Md. 336; Wallace v. Schaub, 81 Md. 594; Brooks v. Preston, 106 Md. 693.
We hold, therefore, that the statute of limitations was properly pleaded in this case, and as it constitutes a complete bar to the plaintiff’s right of recovery, it will not be necessary to consider the defenses presented by the other pleas.
Finding no error in any of the rulings of the Court, and as the plaintiff re-fuseed to reply to the defendant’s pleas, after the demurrers were overruled, judgment in favor of the defendants by default was properly entered by the Court,, and it will be affirmed.
Judgment affirmed, with costs.