Blair v. Durham

• Citation: 134 F.2d 729
• Decision Date: 09 April 1943
• Docket Number: No. 9281.,9281.
• Parties: BLAIR et al. v. DURHAM.
• Court: U.S. Court of Appeals — Sixth Circuit

134 F.2d 729 (1943)

BLAIR et al. v. DURHAM.

No. 9281.

Circuit Court of Appeals, Sixth Circuit.

April 9, 1943.

John Bell Keeble, of Nashville, Tenn. (Keeble & Keeble, of Nashville, Tenn., on the brief), for appellants.

John J. Hooker, of Nashville, Tenn. (David P. Murray, of Jackson, Tenn., and Walker & Hooker, of Nashville, Tenn., on the brief), for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Appellant, Algernon Blair, doing business as the Algernon Blair Construction Company, was general contractor for the repair of and improvements on, the United States Post Office, Customs House and United States Court Building in the city of Nashville, Tennessee, and appellant, C. W. Roberts, was the Superintendent and Manager for his co-appellant. The work was being done while the building was occupied and in use by officers and employees of the United States.

On or about August 17, 1938, appellee, Nelle B. Durham, a stenographic clerk in the Social Security Division in the office of the Collector of Internal Revenue, while at work in one of the rooms where the rebuilding under appellant's contract was going on, was struck in the head and injured by a heavy piece of timber falling from a scaffold.

Appellee originally filed this action on January 14, 1939, and alleged in her complaint that "by reason of the negligence and carelessness of defendants, their agents and servants in handling certain heavy timbers on and about the scaffolding that was erected in the office in which the plaintiff was working, a large and heavy piece of board approximately 2x4 inches in width and thickness and about 3 feet long was permitted to fall from said scaffolding, which was about 10 feet above the floor, and onto plaintiff's head with great force and violence injuring her."

Issue was joined on this complaint and the cause came on for trial before a jury. In the course of the trial on August 15, 1940, appellee with the consent of the court filed an amended complaint alleging the same facts with the following revision: "The defendants had erected said scaffolding and provided it for the use of persons engaged in the installation of air-conditioning equipment in said building and said scaffold was erected in such a manner that it did not protect persons, including the plaintiff, who were required to work thereunder, but was erected in such a manner that the defendants might have reasonably anticipated that heavy objects would be likely to fall therefrom."

At the time the amendment was filed, the empanelling of the jury was set aside and the cause continued. Thereupon appellants moved to dismiss the amended complaint on the ground it stated a new cause of action and was barred by the Tennessee Statute of Limitation of one year. (Code of Tennessee, Sec. 8595.) Said motion was overruled by the court.

On retrial, the jury returned a verdict on behalf of plaintiff for $6,500. Appellants assign the following points:

1. Appellee's amended complaint was barred by the one-year statutory period of limitation.

2. That the court erred in ruling that Section 8581 of the Tennessee Code made inapplicable the one-year statutory period of limitation, because each of the appellants had resided out of the State of Tennessee, and each was absent from the State of Tennessee and was a resident of another state at the time appellee's cause of action accrued, and

3. The court erred in failing to direct the jury peremptorily to find for appellants.

Rule 15(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that a party may amend his pleadings by leave of court, which leave shall be freely given when justice so requires at any time during the proceedings, and subsection (c) of the rule provides that whenever the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading. The issue here as to whether the statute of limitations was tolled by the original complaint depends upon whether the amendment stated a new cause of action.

A cause of action is the unlawful violation of a right or failure to discharge a duty which the facts show. The variety of facts alleged does not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. A multiplicity of grounds of negligence alleged as causing the same injury does not result in pyramiding as many causes of action as separate allegations of actual negligence.

An amendment does not set up a new cause of action so long as the cause of action alleged grows out of the same transaction and is basically the same or is identical in the essential elements upon which the right to sue is based and upon which defendant's duty to perform is alleged to have arisen. As long as a plaintiff adheres to a legal duty breached or an injury originally declared on, an alteration of the modes in which defendant has breached the legal duty or caused the injury is not an introduction of a new cause of action. The true test is whether the proposed amendment is a different matter or the same matter more fully or differently laid.

A comparison between the appellee's original complaint and the amendment leaves no room for doubt that in both she relies on the same unlawful violation of a duty which appellants owed her at the place and in the position where she worked.

The original complaint which alleged that appellee's injuries were due to the negligence of appellant's employees in the use of the scaffold states no different cause of action as respects limitation than the amended complaint which stated that her injuries were due to the negligent manner in which the scaffold was constructed, because the two acts alleged were but different invasions of appellee's primary right and different breaches of the same duty. There was but one injury and it is immaterial whether it resulted from the negligence of the users of the scaffold or from its construction, since in either case it was a violation of the same obligation. Missouri, Kansas & Texas Railway Company v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355; New York Central & Hudson River Railroad Company v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 67 L.Ed. 294; Maty v. Grasselli Company, 303 U.S. 197, 199, 58 S.Ct. 507, 82 L.Ed. 745; Cincinnati, N. O. & T. P. Railway Company et al. v. Gray, 6 Cir., 101 F. 623, 50 L.R.A. 47; Clinchfield R. Co. v. Dunn, 6 Cir., 40 F.2d 586, 74 A.L.R. 1276; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861.

The trial court ruled that the question of whether a new cause of action was stated by the amendment to appellee's complaint was immaterial in view of Section 8581 of the Code of Tennessee, which provides that while the defendant is absent from or a non-resident of the state for a certain period, the time of such absence or non-residence shall not be taken as any part of the time limited for the commencement of the action. Appellants insist that in order to come within the terms of Section 8581, appellee must...