Alabama Consolidated Coal & Iron Co. v. Heald

45 So. 686, 154 Ala. 580, 1908 Ala. LEXIS 550

• Court: Supreme Court of Alabama
• Decided: February 5, 1908
• Status: Published

Opinions

ANDERSON, J.

The plea of the statute of limitations (No. 12) to counts 3 and 4 of the amended complaint, being in legal form, was not subject to the demurrer interposed, and the trial court erred in sustaining the same. If, however, the undisputed evidence fixed the injury or death within one year of the commencement of the suit, then the plea could have been properly charged out, and the action of the trial court in sustaining the demurrer would be error without injury. The undisputed evidence shows that the intestate’s death was within a year of the commencement of the suit, but was more than a year before the addition of the amended counts to which the plea was filed. The result is that, if said amended counts related back to the original complaint, then the action of the court in sustaining the demurrer was error without injury. On the other hand, if the amendment did not relate back, the defendant was injured by the action of the trial court in sustaining the demurrer to the plea of the statute of limitations. This brings us to the consideration of a question as to which there is some conflict in authorities, as well as considerable confusion among the profession. The first count sued for the negligent cansing of the death of the intestate by the defendant, whether under the statute or the common law; and the third count, being the one under which the cause was tried, was for the negligent death of the intestate, charging that it resulted from obeying orders, and that it was the duty of the intestate io conform to said orders, as provided by subdivision 8 of section 1749 of the Code of 1896. It will be observed that the wrong complained of is identical, the wrongful death of the intestate, whether the recourse sought is under the common law or statute, or both, and a judgment on either count would be a complete bar to a recovery in the second suit.

A new cause of action is not set up by amendment, within the rule governing the statute of limitations in such cases, where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. — Terre Haute R. R. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277, and extensive note. “‘As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid tc meet the possible scope and varying phases of the testimony.” 1 Ency. Pl. & Pr. 564 (quoted from body of text at top of page, citing many authorities in support of same), cited approvingly in the following cases, where the question of statute of limitations was before the court: Pratt v. Montcalm Circuit Judge, 105 Mich. 499, 63 N. W. 507; City of Detroit v. Hosmer, 125 Mich. 634, 85 N. W. 2; Pickett v. Southern Ry. Co., 74 S. C. 236, 54 . “Where an amendment does not set np a new cause of action, or bring in any new parties, the running of the statute of limitations is arrested at the date of filing the original pleading.” — 1 Ency. Pl. & Pr. 621. “We have already had' occasion to hold that merely amending the pleading with respect to the allegations of negligence does not introduce a new or different cause of action. The purpose of the original petition was to recover of defendant damages sustained by plaintiffs from the death of Perry in the particular accident through the negligence of the defendant, alleging the negligence to be in a particular respect. It would be immaterial in any case what form the negligence took, so long as it was negligence of defendant causing the injury complained of. Hence it cannot be said that any particular form of negligence is an essential element oí the cause of action, nor that a change of allegations as to negligence really affects the cause of action.” — G., H. & S. A. Ry. Co. v. Perry, (Tex. Civ. App. 85 S. W. 66. “The statement of additional grounds of negligence is not a statement of a new cause of action, and the statute of limitations cannot be invoked as a bar to the additional ground of recovery thus pleaded.” — Smith v. Mo. Pac. Ry. Co., 56 Fed. 458, 5 C. C. A. 559, citing Land Co. v. Mingea, 89 Ala. 521, 7 South. 666.

“In the original petition certain acts of negligence are specified. In the amendment certain other specifications of negligence are pleaded. But the cause of action is the same. * * *• We are very clearly of opinion that the statement of additional grounds of negligence is not a new cause of action. There is no departure from the original petition in the time, place, or circumstances of the casualty which caused the death of the intestate.” —Kuhns v. Wis. I. & N. Ry. Co., 76 Iowa, 67, 40 N. W. 93. “The cause of action was the homicide of the plaintiff’s husband, by the negligence of the defendant. In setting out that negligence, it was described in one way in the original declaration, in another by the first amendment, and in another by the second amendment. But it was all the same cause of action. It might be tested thus: Suppose it were lawful to amend indictments for murder, and you had an indictment for the murder of A., alleging that it was by shooting, and the proof disclosed that it was by stabbing; could an amendment alleging that it was by stabbing be thought to charge another and different crime? The crime in the supposed case would correspond to the cause of action in this. Would it be charging the defendant with another crime to add. another count, or to allege in the same count that the death was the result of stabbing or other means than shotting — the means first charged? We think not. There can be but one cause of action for the homicide of any one man, and all these variations went to the means and mode by which the homicide was perpetrated; and the present case is a good illustration of the propriety of at least a discretionary power of allowing such amendments; because, as the plaintiff understood her case and proved it, the homicide was the result of an occurrence at the crossing, separated altogether from the cars and the condition of the cars. But the defendant introduced evidence, of w'húch probably the plaintiff had no knowledge or information before, tending to show that the killing occurred in consequence of the husband being upon the train and attempting to get off, and exposing himself, or becoming exposed, while in the act of alighting. It would be a great hardship to make this action fail because of the difference, and the doubt as to how the death really came to pass, provided that it was the result of defendant’s negligence. It was a proper case for amendment, and it would have been an abuse of tbe law of amendment, had this amendmnet been disallowed. The cause of action alleged being the homicide of plaintiff’s husband by means of the defendant’s negligence, the allegations in the declaration touching the specific acts of negligence and the manner of causing death may be varied or added to by amendment during the progress of the trial, so as to adapt the pleadings to the evidence in all its aspects. * * * The amendment did not introduce a new cause of action, and it was not offered too late.” — Harris v. Central R. R. Co., 78 Ga. 525, 3 S. E. 355.

“An amendment cannot be allowed that introduces a new cause of action; but, as long as the plaintiff adheres to the contract or the injury originally declared upon, an allegations of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony. * * * If you can amend by declaring for another injury occasioned by the same wrongful act, why can you not amend by declaring for the same injury as occasioned by another wrongful act? And this you certainly do when you amend by assigning a new breach of the same covenant; but you are seeking the same thing all the time, namely, damages for the breach of that covenant.” — Daley v. Gates, 65 Vt. 592-594, 27 Atl. 193. “The original declaration filed June 24, 1892, went only upon the charge that an unblocked frog was a danger to which a switchman ought not to be exposed; but on the trial that ground of action was abandoned, as the appellee knew the construction. March 3,1894, an additional count was filed, and April 20,1894, another, both of which alleged that the appellant wrongfully permitted a pile of cinders and like material to be and remain near to the frog, the appellee being unaware of the pile, and that he stumbled upon it, and his foot was thereby thrown into the frog. To these counts the appellant pleaded that the cause of action did not accrue within two years next before they were filed (the accident having occurred May 5, 1891), to which plea a demurrer was sustained, and rightfully, for they were but another way of telling the original story.” — I. C. R. R. Co. v. Campbell, 58 Ill. App. 277, 278. “The original declaration was filed May 16, 1893, and June 7, 1896, additional counts were filed, to which the appellant pleaded the statute of limitations. To these pleas the court rightly sustained demurrers. All of the counts were for the same injury, only varying the story as to the manner of the negligence of the appellant.” — L. S. & M. S. Ry. Co. v. Ryan, 70 Ill. App. 47.

“The most serious question raised upon this record is as to the action of the court in sustaining a demurrer to the plea of the statute of limitations to the additional count of the declaration. But after a careful comparison of the two counts, and in the light of the recent decisions, we are inclined to the view that the one is but a restatement of the cause of action set up by the other. The gist of the negligence charged in the original count is the furnishing of a defective appliance, viz., the door, for appellee, its employe, to use; and the gist of the negligence charged in the additional count is the ordering of appellee, its employe, to use a defective appliance, viz., the door in question.” — Griffin Wheel Co. v. Marks, 79 Ill. App. 87; Griffin Wheel Co. v. Marks, 180 Ill. 391, 54 N. E. 207 (Supreme Court of Illinois, affirming the Appellate Court). “Probably the explanation or reconciliation of the cases on the subject is this: That, while a distinctly new cause of action may not be inserted b> way of amendment,- new facts or issues relating to tbe cause of action attempted to be stated may be allowed as amendment.” — Pickett v. Southern Ry. Co., 74 S. C. 236, 54 S. E. 377. “The action itself, to recover damages for that negligence and its results, was the principal thing, whatever may have been the details incident thereto, and was commenced within one year, and ivas not barred by the statute of limitations by reason of the supplying by amendment of any omission, or by correcting any error of the petitioner’s claim that her intestate was injured by the receiver’s negligence, whether the detail of its happening were one way or another. For the injuries complained of the suit was, without any objection to its form, instituted before the master in the way already mentioned, and, although the means and manner of the infliction of these injuries were variously stated, the appellee, as we have seen, always relied upon the original claim that her intestate was injured by the negligence of the receiver. It does not appear, therefore, that this assignment of error is well taken. The action was brought within the year allowed by the Kentucky statute. It has been prosecuted continuously from that time until now, and the generic cause of action has always been the same.” — C., N. O. & T. P. R. Co. v. Gray, 101 Fed. 623, 41 C. C. A. 535, 50 L. R. A. 50, 51.

“The original complaint averred plaintiff’s intestate’s death was caused by the negligence of fellow servants, thus failing to aver a cause of action. After the running of the statute of limitations a count was added by amendment, averring negligence of the master in selecting incompetent fellow servants, and the court held the overruling of plaintiff’s demurrer to the plea of statute of limitations was error, saying: “The statement of the cause of action was different, but the cause of action itself was identical. Injury resulting in death is what occasioned. the suit. The imperfect statement of the case did not cause the correct statement of it to be a different cause of action. Being the same cause of action, the accurate statement of it in the amended declaration did not convert the original suit into a new and different suit, and therefore did not warrant the filing of any other plea of the statute of limitations than such as could have been interposed to the original narr.’ ”— State v. Chesapeake Beach Ry. Co., 98 Md. 35, 56 Atl. 387, 388. Upon the same state of pleadings the Supreme Court of Texas said: 'We are of the opinion that the ruling of the district court was correct, and' that the-amendment did not present a new or different cause of action from the one imperfectly alleged in the original petition. The cause of action in this case is the injury inflicted upon the plaintiff by the defendant. If no injury had resulted to the plaintiff from the collision, no cause of action would have accrued, and no petition could be framed that would show a right in the plaintiff' to recover from anybody. If, however, injury results to a person from the negligent act of another, the right of action is complete, although the pleader may fail to set up the reasons why it is complete, or may set up the wrong reason, or may plead a state of facts that shows no right to recover from the defendant sued; and yet, in either case, the fact of liability does exist, and the suit claiming damages for the injury is well brought, and is sufficient to apprise the defendant of the plaintiff’s claim against him, although the case, as stated, may be subject to a general demurrer, as showing no complete cause of action.’-’ — Texas & P. Ry. Co. v. Johnson (Tex. Civ. App.), 34 S. W. 187.

“The injury was alleged to have been caused by the falling of a derrick, and that the derrick was caused to fall by the breaking of an eyebolt, which was alleged to have been defective. The amended petition charged substantially the same facts, but extended the grounds of negligence to other defects in the appliances used and to the carelessness of the foreman in the use of such appliances. The subject-matter of the two pleadiugs was the same, and the enlargement of the allegations as to negligence did not change the cause of action.” — Caswell v. Hopson (Tex. Civ. App.), 47 S. W. 54. “It is but justice that, when the plaintiff has sustained injury, if the complaint is imperfectly stated, he should be permitted by amendment- to cure the inadvertence of counsel in drawing the complaint, and receive any remedy which, upon the facts of the transaction, he is entitled to receive.”- — Lassiter v. Norfolk & C. R. Co., 136 N. C. 89, 48 S. E. 644. “The very object of an amendment is to supply the omission of the original pleadings, and it never has been supposed that the statute of limitations would present any impediment to its being done at any time during the progress of the cause.” — I. & G. R. R. Co. v. Dalwigh (Tex. Civ. App.), 56 S. W. 137. “The company assumes that a new cause of action .is stated in the amended pleading, and it is contended that as to such new cause of action it must be deemed to have been commenced when the amendment was made, and not; when the action itself was commenced, and therefore that it was barred. This contention cannot be successfully maintained. No new cause of action was set forth in the amended petition. The cause of action set forth in each of the pleadings was the negligent killing of Andrew C. Moffatt.” — Mo. Pac. Rq. Co. v. Moffatt. 60 Kan. 113, 55 Pac. 838, 72 Am. St. Rep. 343.

We think that the amendment in the case at bar'was within the lis pendens, according to the overwhelming weight of authority in other states, and that our own court is committed to- the same holding. — L. & N. R. It. Co. v. Woods, 105 Ala. 568, 18 South. 41, reaffirmed in 115 Ala. 529, 22 South. 33; Williams v. McKissack, 125 Ala. 547, 27 South. 922, citing approvingly the Woods Case, supra. We do not consider that what was held in the case of Nelson v. First Nat. Bank, 139 Ala. 593, 36 South. 707, 101 Am. St. Rep. 52, is in conflict with this opinion, as the only point decided was that, the first count being for money had and received, the second, being for goods sold, set up a new cause of action, which would not relate back, so as to intercept the statute of limitations. Therefore, if anything is said in that opinion in conflict with one holding in the case at bar, it is dictum. The case of Union Pac. R. R. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, while finding some support among the earlier text-writers and a few of the state courts, is in direct conflict with the overwhelming weight of authority, including our own court. We recognize the decisions of the Supreme' Court of the United States as binding on us as to all federal questions; but, while we regard its decisions with great respect upon other questions, we do not feel compelled to follow in its wake in this instance. The Union Pac. R. R. Case, supra, is based upon antiquated principles and a misconception of authorities cited, as well as some which were in effect overruled by the court rendering them. For instance, the cases of Mohr v. Lemle, 69 Ala. 180, and A. G. S. R. R. v. Smith, 81 Ala. 229, 1 South. 723, seem to be relied upon as authorities in support of the opinion, when as a matter of fact they do not. The Mohr Case, supra, was differentiated from the holding in the Woods Case, 105 Ala. 568, 17 South. 41, while the Smith Case, supra, does not support the opinion, and is not in conflict with the present case. The first count in the Smith Case was trespass for the forcible ejection of the plaintiff from the train, and the amendment was based on the plaintiff voluntarily leaving the train, induced by a negligent mistake of the porter as to the station at which the train had arrived, and is not unlike the Freeman Case, Infra, 45 South. 898. Again, the opinion in the Union Pac. Case quotes at length from the case of Bolton v. Ga. Pac. R. R., 83 Ga. 659, 10 S. E. 352, and said case was subsequently in effect repudiated by the Georgia court in the case of Ellison v. Ga. R. R. Co., 87 Ga. 691, 13 S. E. 810. And see L. & N. R. R. Co. v. Pointer’s Adm’r, 113 Ky. 952, 69 S. W. 1110.

The first count of the complaint was attempted under section 27 of the Code of 1896, and the amendment was brought under section 1749. But, conceding that the first was under the common law and the other under the statute, and that there was a change from “law to law,” this would not prevent the amendment from relating back. — Pointer’s Case, supra; Lassiter v. Norfolk R.. R., 136 N. C. 89, 48 S. E. 643; Miller v. Eric R. R., 109 App. Div. 612, 96 N. Y. Supp. 245. The trial court did not err in overruling the motion to strike the amendment, and the error of sustaining the demurrer to the plea of the statute of limitations as to the third count was error without injury.

The trial court erred in permitting the plaintiff to prove that immediately after the death of the intestate the defendant placed in the mine certain water pipes.— Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784; 1 Wigmore on Evidence, § 283. It is insisted that this evidence was subsequently excluded by the court. It is true the court instructed the jury to consider no evidence except what related to count 3. This evidence may not have related to count 3; but we do not think such an order eradicated it from the minds of - the jury. It virtually left it to them to pass upon the applieaiton of the evidence to the different counts.

There was no error in permitting plaintiff to prove that another miner was found dead at or near the intestate. This was a fact tending to show that the intestate came to his death from suffocation or from some other unnatural cause.

The trial court erred in not excluding the evidence of witness Hawkins; “He looked as if he had smothered to death.” This was but the opinion of the witness, who was not shown to be competent to give an opinion on the subject.

The trial court did not err in refusing charge 2, requested by the defendant. Whether it asserts the law or not, it was abstract.

All the Justices concur in the reversal, but Dowdell, Simpson, and McClellan, JJ., dissent as to the amendment, and do not think the amended counts relate back so as to cut off the statute of limitations.

Reversed and remanded.