Alabama G.S.R. Co. v. Smith

• Decision Date: 20 February 1887
• Citation: 81 Ala. 229,1 So. 723
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SMITH.
• Court: Alabama Supreme Court

1 So. 723

81 Ala. 229

ALABAMA GREAT SOUTHERN R. CO. v. SMITH.

Supreme Court of Alabama

February 20, 1887

Appeal from circuit court, De Kalb county.

Action for damages for ejection from railroad car.

This suit was commenced by appellee March 14, 1884. On the trial March 12, 1886, the defendant pleaded the general issue, and contributory negligence. An amended complaint was filed on the trial, as set forth in the opinion of the court; and the defendant pleaded the same pleas as to the original complaint, and the statute of limitations. The defendant asked the court to charge the jury: "If the jury believe all the evidence they ought to find a verdict for defendant,"-which the court refused to do, and defendant excepted.

Rice & Dobbs, for appellant.

M J. Haralson, for respondent.

CLOPTON J.

The cause of action alleged in the original complaint is that the plaintiff, having purchased a ticket for transportation from Chattanooga to Valley Head, a station on the railroad of defendant, and being a passenger on its train, " was forcibly ejected and thrown out and from his seat in the cars of said company, without his consent, before he reached his destination. " On the trial, after the witnesses had been examined, and the court was charging the jury, the plaintiff, by leave of the court, amended the complaint by adding another count. The cause of action, as averred in the additional count, is that when the train reached Eureka, also a station on the railroad, the porter called out Valley Head and plaintiff was induced thereby to get off the train believing he was at Valley Head. To the added count the defendant pleaded the statute of limitations of one year, and refiled to the amended complaint the same pleas previously filed to the original complaint.

A comparison of the two counts manifests that the amendment does not merely vary the allegations of the complaint in respect to a matter already in issue, so as to meet the different phases in which it may be presented by the evidence. A cause of action based on the forcible and wrongful ejection of a passenger from the cars is essentially different and distinct from a cause of action based on his voluntarily leaving only, induced by a negligent mistake of the porter as to the station at which the train had arrived. While a new cause of action may be introduced by amendment, the established limitation on the operation of its relation to the commencement of the suit is that, if the amendment introduces new matter or a different cause of action, not within the lis pendens, as to which the statute of limitations has operated a bar at the time of making the amendment, it is as available as if the amendment were a new and independent suit. Mohr v. Lemle, 69 Ala. 180.

On the pleadings and evidence, the plaintiff was not entitled to recover on either count of the amended complaint. More than one year from the time of the grievance complained of had elapsed before the amendment was made. The statute of...