Armstrong v. May

• Decision Date: 25 January 1916
• Docket Number: Case Number: 6455
• Citation: 155 P. 238,55 Okla. 539,1916 OK 110
• Parties: ARMSTRONG et al. v. MAY et al.
• Court: Oklahoma Supreme Court

1916 OK 110

155 P. 238

55 Okla. 539

ARMSTRONG et al. v. MAY et al.

Case Number: 6455

Supreme Court of Oklahoma

Decided: January 25, 1916

Syllabus

¶0 1. PROCESS--Service of Summons--Motion to Quash. A motion to quash the service of a summons for the reason that the defendant was given 22 days from the return day to answer was properly overruled.

2. LIMITATION OF ACTIONS--Amended Petition--Running of Statute. An amended petition which contains no new cause of action, but merely an enlarged claim for damages arising from the same act mentioned in the original petition, is not subject to demurrer because the same shows on its face that claim is barred by statute of limitations; but the amended petition will be held to relate back to the filing of the action and defeat the operation of the statute.

3. DAMAGES--Injury to Realty--Measure of Damages. The true measure of damages for injury to real estate is the difference in the market value of the same before and after the injury complained of; but this rule is subject to the exception that if that destroyed, although a part of the realty, has a value which can be ascertained without reference to the soil out of which it grows or on which it stands, a recovery may be had for the value of the articles destroyed.

E. S. Kerr, for plaintiffs in error.

Walter E. Latimer, for defendants in error.

HOOKER, C.

¶1 There are four assignments of error urged, which we will consider as they are presented. 1. The plaintiffs in error contend that the lower court should have sustained their motion to quash the summons, for the reason that the answer day as fixed by the summons was 22 days after the return day of summons. It is apparent, from an examination of the record, that the defendants below complaining of said summons had their full 20 days in which to answer, and therefore they were not deprived of any substantial right, and the proposition urged is not tenable. 2. Because the court erred in overruling the demurrer of the plaintiffs in error to the amended petition filed in this action. From an examination of the record it appears that on the 19th day of August, 1911, R. E. Mays filed his petition wherein he sought to recover damages against G. W. Armstrong, Ben Hopson, and another for trespassing upon real estate, and for injury to personal property thereon. The petition alleges that on or about the 15th day of December, 1910, the plaintiff was the owner of certain real estate, and there was situated thereon at that time a good stalk field and cattle pasture, which were worth the sum of 50 cents per acre, and that plaintiff owned and had piled on said farm 250 bushels of good corn, which was worth the sum of 50 cents a bushel, and 12 tons of millet, which was worth the sum of $ 10 per ton, and that said defendants, without his authority or consent, unlawfully and willfully took possession of all of said property, and that said defendants, acting through the defendant Hopson, three times forcibly tore down his fence surrounding his premises, and drove cattle thereon, and by means of firearms prevented the agent of the plaintiff from protecting his property, and that plaintiff was damaged by reason of the acts in the sum prayed for therein. Thereafter, on the 10th day of July, 1913, the plaintiff below filed an amended petition in this action, wherein he sets forth the damages to the corn more specifically, and it is the contention of the plaintiffs in error that the damages to the corn are not embraced in the first petition, and that the second petition, filed more than two years after the date of the injury, shows upon its face that the cause of action was barred by the statute of limitations, and a demurrer thereto, so far as the allegations as to the corn, should have been sustained. A careful examination of the pleadings in this case shows that the original petition embraced an imperfect statement of cause of action for damages as to the corn, and the lower court did not commit error when it permitted the amended petition to be filed, for the reason that the question as to whether the plaintiff intended, when he brought his action, to include the substance of the amended petition as a part of his demand, is within the discretion of the trial court, as was stated in Cogswell v. Hall, 185 Mass. 455, 70 N.E. 461. The amended petition was not subject to the objections urged by the plaintiffs in error, for it was not a statement of any new cause of action, but a restatement or a more correct and specific allegation of the same cause of action set forth in the original petition in this case. Our statute and the decisions of this court have always been extremely liberal in permitting amendments to pleadings, so long as they are in furtherance of justice. In 25 Cyc. 1305, we find the following language:

"Where plaintiff, by amendment, sets up new matter or claim, but merely restates in a different form more correctly and specifically the same cause of action set out in the original declaration, it is not a new suit, and the statute will not avail for a period between the original and amended pleading. Where the original declaration states a cause of action, but does it imperfectly, and afterwards an amended declaration is filed correcting the defect, the plea of the statute of limitations will relate to the time of filing the original declaration."

¶2 In the note on page 1307 we find where the courts have said:

"Where a cause of action for personal injuries has been pleaded, the enlargement of the allegations is not affected by the statute of limitations." Illinois Steel Co. v. Szutenbach, 64 Ill. App. 642; The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S.W. 117.

¶3 Likewise this court, in the case of E. Van Winkle Gin & Machine Works v. Brooks, 53 Okla. 411, 156 P. 1152, decided January 11, 1916, by Chief Justice Kane, say:

"1. Amendments of pleadings may be allowed in furtherance of justice, when such amendments do not substantially change the cause of action or defense. This change does not refer to the form of the remedy, but to the general identity of the transaction.

¶4 "2. In an action for personal injuries, after the cause had been reversed and remanded for a new trial, and after the expiration of five years from the date of the injury, the plaintiff amended his petition by adding to the acts of negligence formerly set up in his petition, and charged that the defendant was negligent, in that it did not exercise reasonable care to provide plaintiff with safe fellow servants and coemployees. Held, that said amendment did not affect the general identity of plaintiff's cause of action, and was therefore permissible by virtue of section 4790, Rev. Laws 1910, notwithstanding more than five years had...