Lowden v. Pine Club

21 Ohio N.P. (n.s.) 483, 30 Ohio Dec. 1, 1918 Ohio Misc. LEXIS 58

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: December 16, 1918
• Status: Published

Opinions

Kinkead, J.

This action was commenced January 9, 1917. The cause of action was one by plaintiff as wife of Albert Lowden dependent for support upon him and entitled to his earnings. Recovery was sought only from the Pine Club, a corporation, and defendants Walter Iiicks and D. C. Henderson, with whom Albert Lowden, plaintiff’s husband, played games of chance, losing the total sum of $945.50.

The first amount of money plaintiff’s husband was alleged to have lost at gambling with defendants was on the 14th of September, 1916. Other loosings occurred September 15 to 30, inclusive, October 1 to 31, inclusive,-and November 1 to 16, inclusive, 1916. This husband’s daily occupation seems to have been that of gambling for nearly three months. He must have had sufficient resources to have so persistently followed that occupation, or to have scored sufficient winnings to have kept him in that daily occupation such length of time.

In the original petition plaintiff set up each alleged loss as a separate cause of action, and sought to recover a penalty upon each one. This was held improper.

A demurrer was filed to the petition. Plaintiff brought her action within the six months from the losses and hence before she had any right to maintain an action under the statute. She had not made the occupants or owners of the building parties defendant, by her original petition. On demurrer Judge Evans held the wife had no right to maintain her action, because up to that period the husband had the exclusive right to institute an action in his own right. Section 5966. Hoos v. Layton, 3 O. S., 352.

• No action had accrued in plaintiff’s favor when she brought her action, hence the only order that could properly have been made when the demurrer was sustained was a dismissal of the action. It was error to grant- leave to file an amended petition for the reason that it was perfectly plain that under the rules of pleading plaintiff could not change the nature of her action by an amendment. '

The original petition was filed January 9, 1917; the amended petition was filed July 23, 1918, eighteen months after commencement of her action, which it was decided she had no right under the law to bring. The action should have been dismissed, and a new one commenced.

At the time of bringing in of the parties defendant who occupied or owned the property, plaintiff’s claim against them had become barred by the statute, the limitation of one year being a statutory penalty. Cooper v. Rowley, 29 O. S., 547; Harrington v. Halliday, 4 N.P.(N.S.), 281.

It is also well settled that an amendment or amended pleading not only can not bring in a claim barred since commencement of the action (Kinkead Pleading, Section 131; Hills v. Ludwig, 46 O. S., 373; Commissioners v. Andrews, 18 O. S., 69); Marriott v. Railway Co., 2 N.P.(N.S.), 231, but a plaintiff can not add new parties by an amended petition as to whom the statute of limitations has run since the original petition was filed and action commenced. Kinkead Pleading, Section 131, note 6 and authorities cited.

Furthermore, it is a settled rule of practice that an amended petition can not change the cause of action or bring in a new cause of action. An amendment can not change the nature or scope of the cause of action set forth in the original petition. Phillips Pleading, Section 313; Hawkins v. Furnace Co., 40 O. S., 507.

The fundamental conception is that an amended pleading relates back, is substituted and takes the place of the original, and has exclusive relation,to the time of commencing the action, the rights of the parties being determined as of that time; the statute of limitations ceases to run when the 'original petition is filed. But a party can not by amendment bring in a claim omitted in the petition which has become barred since the filing of the original petition and have it relate back to the filing of the original petition so as to defeat the statute. Kinkead Code Pldg., Section 111 and cases cited.

We have never known any better authority on the subject than the learned judge who analyzed the gambling statutes in Vincent v. Taylor, 60 O. S., 309 He pointed out the difference in character between the cause of action inuring to the player and to the wife. That of the player is lost unless he institutes his action in six months. And the right of the wife does not accrue until that of the player is lost.

This court found on demurrer that plaintiff had no right of action at the time when her suit was brought. And under the well settled rules of procedure plaintiff can not sleep on her rights by prolonging this action by the unwarranted mode of procedure pursued by her, until she has not only lost her rights against the participating defendants, but especially as against the additional parties sought to be brought in by the amended petition.

The demurrers to the amended petition are sustained and the action is ordered dismissed at plaintiff’s costs.