96 P. 657 | Kan. | 1908
The opinion of the court- was delivered by
This proceeding involves the question whether the cause of action brought into the case by an amendment to the petition and upon which a recovery was had was barred by the statute of limitations. The cause of action alleged in the original petition was based on an act of the railroad company in setting out a fire on and adjacent to its right of way,.
If the amendment pleaded a different tort than was alleged in the original petition, and brought in a new right of action, such action must be deemed to have
“It is true, as a general rule, that amended pleadings relate back to the commencement of the action, but this rule never obtains where a separate and distinct cause of action is set up by way of amendment. Even though the amendment might otherwise be allowable,it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations if the new cause of action would be otherwise barred.” (Kansas City v. Hart, 60 Kan. 684, 691, 57 Pac. 938.)
Amendments which amplify the averments in the original pleading or which state the same wrong.or right in a different form can not be said to state a new cause of action or let in the statute of limitations. Here, however, it was conceded that the negligent act pleaded in the amendment was not the one originally alleged. It appears that two fires were started by the railroad company, one in the town of Wakeeney and another five miles away from that place, and it is not claimed that the latter was connected with or a continuation of the former. The mere fact that the plaintiff’s property was burned gives no right of action against the defendant. It depends rather upon the negligence and wrong of the defendant in starting the fire which resulted in burning the plaintiff’s trees. The cause of action is made up of two elements, the negligence of the defendant and the injury suffered by the plaintiff, and the fact that the defendant was negligent at Wakeeney
The plaintiff refers to Culp v. Steere, 47 Kan. 746, 28 Pac. 987, as an.authority that the amendment was. permissible. There the original petition claimed damages because of wrongful statements made in the sale of a horse, while the amendment set up that the wrongful statements included a warranty that the horse was fit for the purpose for which he was sold. There was therefore- no substantial change of plaintiff’s claim. The cited case of Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, 72 Am. St. Rep. 343, is not.applicable, as the amended petition did no more . than “set forth definitely that which had been pleaded generally in the original petition,-and. therefore it can not be said that a new cause’ of action or a new ground of recovery was introduced.” (Page 115.) Anoth’er case referred to is Bank v. Layfeth, 63 Kan. 17, 64 Pac. 973, where an amendment was allowed. The subject-matter of the action was that the bank by its wrongful acts had deprived the plaintiff of his interest in a herd of cattle.
In A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, it was said that “a plaintiff can not de
Plaintiff insists that these cases are not applicable because they relate to a departure from law to law, but if the amendment introduces a new right of action it is immaterial whether it is a change in the facts or the law. “A departure may be either in the substance of the action or defense, or the law on which it is founded.” (Saunders, Pl. & Ev., 807. See, also, 1 Chitty, Pl., 16th ed., 811.) A departure from law to law may be more distinctly marked than one from fact to fact, but the latter is equally vulnerable to attack and open to the operation of the statute of limitations where the amendment introduces a new cause of action after the statutory period. This is illustrated in the case of Box v. Chicago R. I. & P. Ry. Co., 107 Iowa, 660, 78 N. W. 694. There the plaintiff first charged negligence of the railway company in using different systems of coupling appliances on its cars by which he was injured. After the statutory period the plaintiff sought to amend by charging that the company’s negligence consisted in allowing the appliances to become loose and out of repair, and it was held to be a departure from fact to fact, which was not permissible after the statute of limitations had run. In Union Pacific
The cause of action set forth in the amended petition and upon which plaintiff relied being barred, there can be no recovery thereon, and therefore the judgment is reversed and the cause remanded, with directions to enter judgment in favor of the defendant.