Alabama Consol. Coal & Iron Co. v. Heald

• Citation: 154 Ala. 580,45 So. 686
• Parties: ALABAMA CONSOL. COAL & IRON CO. v. HEALD.
• Decision Date: 15 June 1907
• Court: Supreme Court of Alabama

45 So. 686

154 Ala. 580

ALABAMA CONSOL. COAL & IRON CO. v. HEALD.

Supreme Court of Alabama

June 15, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from Circuit Court, Etowah County; W. W. Haralson, Judge.

Action by Pat H. Heald, administrator, against the Alabama Consolidated Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Dowdell Simpson, and McClellan, JJ., dissenting in part.

Heald as administrator brought action for damages for the death of his intestate by suffocation, etc., in the iron mine of defendant. On the 24th day of May, 1905, the plaintiff filed his summons and complaint in the office of the circuit clerk of Etowah county. The complaint as originally filed contained one count, which alleges the employment of the plaintiff's intestate by the defendant and his death in defendant's mine, which is alleged to have been caused by the negligence of the defendant in failing to provide a reasonably safe and secure place for him to perform the duties of his employment. On the 7th day of May, 1906, the plaintiff amended his complaint by adding counts 2, 3, and 4. In count 2 the negligence is alleged to be the failure to maintain a reasonably safe and secure place for plaintiff's intestate to perform the duties of his employment, in that it negligently allowed its mine in which intestate was employed to contain a large and dangerous quantity of suffocating gas. Count 3 attributed the negligence to James Dunn, a person in the service or employment of the defendant, to whose orders or directions the plaintiff's intestate did conform and was bound to conform, in ordering plaintiff's intestate to go down into the mine at a time when said mine contained a large and dangerous quantity of suffocating gas. Count 4 declares on a defect in the ways, works, machinery, or plant, etc. The plea of the statute of limitations was filed to the amended counts, and motion was made to strike counts 3 and 4 on the grounds of departure. The motion was denied, and demurrer was sustained to the plea. On the trial all the counts were withdrawn except count 3. The other facts are sufficiently stated in the opinion of the court. The following charge was refused to the defendant: "(2) If injury has resulted from the consequence of a certain act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damages to the last proximate cause, and refuse to trace it to that which is more remote." There was judgment for plaintiff in the sum of $2,800, and defendant appeals.

Dortch Martin & Allen, for appellant.

Denson & Denson, for appellee.

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 causing 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 to conform to said orders, as provided by subdivision 3 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 to 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 S.E. 377. "Where an amendment does not set up 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 of 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 F. 458, 5 C. C. A. 559, citing Land Co. v. Mingea, 89 Ala. 521, 7 So. 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 circumstance 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 shooting--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 which 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 the law of amendment, had this amendment been disallowed. The cause of action alleged being the homicide of plaintiff's husband by means of the defendant's negligence, the allegations in...