Johnson v. American Smelting & Refining Co.

114 N.W. 144, 80 Neb. 250, 1907 Neb. LEXIS 39

• Court: Nebraska Supreme Court
• Decided: December 5, 1907
• Docket: No. 14,967
• Status: Published

Opinions

Good, C.

On tbe 14th day of April, 1903, the plaintiff: commenced this action in the district court for Douglas county against the defendant to recover damages for a personal injury, alleged to have been sustained on the first- day of July, 1899. To the petition filed by the plaintiff the defendant interposed a general demurrer. On the 21st day of March, 1904, an amended petition was filed, and on the dayfollowing the district court sustained the demurrer to the original petition, and granted leave to file an amended petition instanter. While it does not appear that the plaintiff consented to the sustaining of the demurrer, that inference may be drawn from the fact that he filed an amended petition on the day previous to the ruling of the court on the demurrer. Thereafter the defendant filed the following motion: “Comes now the defendant, and moves the court to strike from the files the amended petition in this cause filed, for the reason that the amended petition sets forth a new and different cause of action from that set forth in the original petition, and one that was barred by the statute of limitations at the time of the filing of said amended petition.” This motion was sustained on the 21st day of November, 1904. On the 4th day of February, 1905, plaintiff filed a second amended petition, practically identical in form with the original petition, which petition was, on motion of the defendant, stricken from the files, upon the ground that it was not an amended petition, but a copy of the original petition, to which a demurrer had been theretofore sustained by the court. Thereupon the plaintiff filed a motion, requesting leave of court to withdraw his consent to the sustaining of the demurrer to his original petition, which leave was granted by the court. Under the date of April 28, 1906, appears the following journal entry: “And now on this day come the parties hereto by their attorneys, and this cause comes on to be heard upon a demurrer of the defendant to the original petition of the plaintiff herein, and is argued and submitted to the court; and, after due consideration and being fully advised in the premises, the court does sustain said demurrer, to which the defendant duly excepts, and is by the court granted ten days to amend his' original petition.” The plaintiff refused to plead further, and upon motion judgment of dismissal was entered. Plaintiff appeals, and assigns as error the order of the court in sustaining the motion to strike his first amended petition, the order of the court in sustaining the motion to strike his second amended petition, the order of the court in sustaining the demurrer to the original petition, and the order of the court in rendering judgment of dismissal.

The first question for determination is as to whether or not the court erred in sustaining the motion to strike the first amended petition. In order to determine this question, it becomes necessary to examine both the original and the first amended petitions. In the original petition the plaintiff alleged the corporate capacity of the defendant ; that it was engaged in operating a smelter in Omaha; that it had succeeded “to the rights, property and liabilities of the Omaha & Grant Smelting Company”; that the defendant is now the owner of said smelting property, and running a smelter; that on or about the first day of July, 1899, “the predecessor of the defendant herein owned and operated” the said smelter. Then plaintiff averred that “he was employed by the predecessor of the defendant, and was working for them as a common laborer on or about the 1st day of July, 1899, and that he was under the direction and control of John T. Wolfe, a foreman of said party, and a foreman of the defendant herein”; that while he was so employed for the predecessor of said defendant under said foreman, on or about the 1st day of July, 1899, “he was instructed by Wolfe to take out a broken jacket, and put on a new jacket, from a hot furnace,” etc. Then follow the allegations of his injury and the extent thereof, closing with the following: '“That said injury was the result of the carelessness of the defendant and their foreman, and was without any negligence on the part of the plaintiff.” In the first amended petition it is charged that the defendant at the time of the injury owned and operated the smelter, and that the plaintiff was in its employment, and acts of primary negligence were charged to the defendant, which caused the injury complained of. There is no question raised as to the first amended petition stating a cause of action against the defendant. Appellee contends that the amended petition sets forth a different cause of action from the original petition, and that the statute of limitations had run prior to the filing of the amended petition, and that it was therefore proper to strike the amended petition from the files. We do not concur in this view. The cause of action for which plaintiff sought a recovery was for the injury sustained by him while replacing a broken jacket upon a hot furnace on the 1st day of July, 1899, and that through the negligence of the foreman, Wolfe, he was injured and sustained damages. The same injury, happening at the same time, in the same place, and under the same circumstances, is the basis of his action in each instance. It Avas not a neAV cause of action that he set up in. the amended petition. It is doubtless true that the cause of action Avas defectively pleaded in the original petition. The principal defect tlierein was that it failed to show that the defendant Avas responsible for the employment of the plaintiff, or that it Avas responsible for the action of the foreman, Wolfe. The petition Avas defective, in that it failed to connect the defendant with the negligence, Avliich, it was alleged, produced the injury.

The rule is well settled that an amendment should not be permitted for the purpose of setting up a new cause of action; but this does not forbid the amplification of the original cause of action. Nor does it prevent an amendment whereby a cause of action would be stated, when none Avas stated in the first instance, if it appears that it is the same cause of action that was attempted to be set up in the first instance. The court will be liberal in alloAving amendments when the cause of action is not totally different. Bliss, Code Pleading (2d ed.), sec. 429. “Where a proposed amendment consists of neAV matter relating to the subject of the action as set forth in the complaint, and is not a neAV and independent cause of action, the fact that the statute of limitations has attached to it pending the suit is a strong reason for alloAving the amendment instead of refusing it.” 1 Enoy. PL & Pr. 518, and authorities there cited. “The courts are not entirely agreed as to the right of the plaintiff to substitute a different form of action from that set forth in the petition. But the better rule seems to be that, so long as the subject of the action remains substantially the same, an amendment may be permitted.” Maxwell, Code Pleading, 578, 579. In the case of Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, it is held: “A petition in which the cause of action is insufficiently or defectively stated may be amended by adding other allegations to remedy or cure the defects. The statute of limitations does not run against the amended pleading wherein the amendment consists in setting forth a more complete statement of the original cause of action.” In the case of Kuhns v. Wisconsin, I. & N. R. Co., 76 Ia. 67, it was held proper to permit an amendment after the bar of the statute, setting forth additional and other grounds of negligence than those stated in the original petition; that, as long as it was the same injury for which recovery was sought, the identity of the cause was maintained, although different grounds were alleged as the producing cause of the injury. In McKeighan v. Hopkins, 19 Neb. 33, it was held proper to permit a petition to be amended so as to change the form of the action from one in ejectment to a petition to redeem, upon the ground that the object in both cases was to recover the land, and that the identity of the cause of action was maintained, though there was a change of form. And in that case it was held that the statute of limitations did not run, though the statutory period had elapsed prior to the amendment.’ The same doctrine is substantially set forth in Merrill v. Wright, 54 Neb. 517. We therefore conclude that the district court erred in striking the amended petition from the files. ■

Appellee contends that the order of the trial court in permitting plaintiff to Avithdraw his consent to the sustaining of the demurrer to.the original petition did not have the effect of setting aside the order sustaining the demurrer, and that, as plaintiff took no exception to the ruling of the court in sustaining the demurrer, he has no standing in this court. If such were the rule, then, in any case where plaintiff’s petition was defective, and a demurrer thereto was properly sustained, and he should file an amended petition stating a good cause of action, which should be stricken from the files, even though erroneously, the plaintiff would be Avithout a remedy. The object of pleadings is to arrange for the orderly trial and disposition of a case upon its merits, and amendments of pleadings are always allowed in the furtherance of justice. To our minds the rule contended for by the appellee Avould amount to a bit of legal jugglery, Avhereby the plaintiff would be deprived of a bearing upon the merits of his cause. Wheeler v. Barker, 51 Neb. 846, is a case somewhat similar to the case at bar. It Avas there held that, where the amended petition had been stricken from the files, after the sustaining of a demurrer to the original petition, plaintiff might, by proceedings in error, review.’ the-order of the trial court in striking the amended petition from the files. And it was further held that, if upon examination the amended petition Avas not substantially the same as the original petition, it was error to strike it from the files.

The following opinion on rehearing Avas filed May 7, 1908. Former opinion vacated and judgment of district court affirmed:.

We think it therefore follows that the trial court erred in striking from the files the amended petition and in rendering judgment of dismissal, and that the judgment should be reversed and the cause remanded, Avith instructions to restore to the files the first amended petition.

Duffie and Epperson, CC., concur.

By the Court: For the reasons given in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded, with instructions to restore to the files the first amended petition.

Reversed.

1. Pleading: Cause oe Action. All facts which, taken together, are necessary to fix the responsibility for an injury complained of constitute a cause of action. 2.-: Amended Petition : New Cause oe Action. A cause of action alleged in an amended petition, although founded upon the same injury as that described in the original, is a different cause of action, if it is dependent entirely upon different reasons for holding the defendant responsible for the wrong alleged. 3. -: -: -. The, original petition alleged a personal injury and consequent damages to plaintiff because of the negligence of a third party, and that defendant succeeded to the liabilities of such third person; the amended petition alleged that said injury was caused by defendant’s negligence. Held, That the amended petition stated a new and different cause of action. 4. -; Conclusions oe Law. In testing the sufiiciency of a pleading, mere conclusions of law will be disregarded. 5. Judgment Vacated. Our opinion herein, ante, p. 250, vacated.