Bourdreaux v. Tucson Gas, Elec. Light & Power Co.

• Citation: 13 Ariz. 361,114 P. 547
• Decision Date: 27 March 1911
• Docket Number: Civil 1179
• Parties: L. J. BOUDREAUX, Special Administrator of the Estate of CLIFFORD E. YOUMANS, Plaintiff and Appellant, v. THE TUCSON GAS, ELECTRIC LIGHT AND POWER COMPANY, a Corporation, Defendant and Appellee
• Court: Supreme Court of Arizona

114 P. 547

13 Ariz. 361

L. J. BOUDREAUX, Special Administrator of the Estate of CLIFFORD E. YOUMANS, Plaintiff and Appellant, v. THE TUCSON GAS, ELECTRIC LIGHT AND POWER COMPANY, a Corporation, Defendant and Appellee

Civil No. 1179

Supreme Court of Arizona

March 27, 1911

APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John H. Campbell, Judge. Reversed and remanded with instructions to overrule demurrer.

The facts are stated in the opinion.

S. W Purcell, Edwin F. Jones and Lewis C. O'Connor, for Appellant.

The original complaint stated a cause of action and was not subject to attack on demurrer. The defect claimed in the original complaint, and which is likewise existing in the first amended complaint, is that there is no allegation of damage, or any allegation which is legally equivalent thereto. "Although a complaint may state facts sufficient to sustain a judgment, yet it is essential that it allege damage, or ask a recovery in a certain sum, and a complaint which does not allege or ask damages is defective . . . But a complaint which prays for judgment in a specified amount is sufficient, although it fails to allege in express terms that the plaintiff was damaged." 13 Cyc. 174; Riser v. Walton, 78 Cal. 490, 21 P. 362; Weaver v. Boom Co., 28 Minn. 542, 11 N.W. 113; Bank v. Port Townsend, 16 Wash. 450, 47 P. 896. The failure to insert an ad damnum clause is a mere formal defect. "The ad damnum clause of a common-law declaration, in which the amount of damages is specified, was considered only a formal declaration or allegation, and any objection for defect therein, could be taken only by special demurrer." 5 Ency. of Pl. & Pr., p. 706. "The complaint or declaration may be amended as in other actions, and when the amended pleading does not state a new cause of action, and such amendment, although made after the expiration of the period of limitations, will relate back to the commencement of the suit." Tiffany on Death by Wrongful Act, sec 187; Ellison v. Georgia R.R. & Banking Co., 87 Ga. 691, 13 S.E. 809.

S. L Kingan, for Appellee.

"The complaint in an action for personal injuries must affirmatively show that the negligence of the defendant was the proximate cause of the injury." Thompson on Negligence, sec. 7475; Smith v. Buttner, 90 Cal. 100, 27 P. 29. "In a complaint the necessary facts to constitute a cause of action must be stated in unequivocal language, and not left to inference." 4 Ency. of Pl. & Pr. 605; Scott v. Robards, 67 Mo. 289; Seligson v. Hobby, 51 Tex. 147; Crump v. Mims, 64 N.C. 767. The complaint contains no allegation of damage, nor does it allege facts from which damage might be presumed, or inferred. "Allegation of damages, generally: in those jurisdictions where the statute provides that the action shall be for the recovery of pecuniary loss only, or where an interpretation has been placed upon the statute by the courts, it is essential for the declaration or complaint to allege that pecuniary loss has resulted from the death." 5 Ency. of Pl. & Pr. 874. As the complaint states no cause of action, it cannot be amended after the bar of the statute of limitations is complete. If no cause of action be set forth, there is nothing to amend by; it is the same as if no pleadings had been filed. Brigham v. Este, 2 Pick. (Mass.) 420; Foster v. St. Lukes, 191 Ill. 94, 60 N.E. 803; Lilly v. Charlotte R.R. Co., 32 S.C. 142, 10 S.E. 932; Keppler v. Becker, 9 Ariz. 234, 80 P. 334.

OPINION

LEWIS, J.

On the twenty-first day of March, 1908, one Clifford E. Youmans, a lineman of the Consolidated Telephone, Telegraph and Electric Company, was killed while engaged in repair work. In November, 1908, the appellant brought this action against the appellee, seeking a money judgment for the death of Youmans, which was alleged to have been caused by appellee negligently permitting a highly charged wire to come in contact with the telephone line which decedent was repairing. The cause of action attempted to be stated was one for wrongful death under paragraphs 2764 to 2766 of the Revised Statutes of Arizona of 1901. The complaint, tested by a general demurrer, unquestionably failed to state facts sufficient to constitute a cause of action. In May, 1909, the appellant filed an amended complaint, to which appellee answered, demurring upon the ground that plaintiff's cause of action was barred by the statute of limitations, in that it appeared upon the face of the complaint and the records of the court that the original complaint filed did not state facts sufficient to constitute a cause of action, and that the first amended complaint was not filed until more than a year after the cause of action had accrued. This demurrer was sustained. Appellant thereafter filed a second amended complaint to which appellee answered, demurring upon the same ground, which demurrer was also sustained. Judgment was entered dismissing the complaint. This appeal was thereupon taken from the judgment.

The rulings and judgment of the trial court were correct upon the authority of Keppler v. Becker, 9 Ariz. 234, 80 P 334. The appellant asks a review of that decision. This court in the Keppler case thus stated the law: "It is a rule of general application that, where the original complaint states no cause of action, it will not arrest the running of the statute of limitations and an amendment made after the bar of the statute is complete must be treated as filed at the time the amendment is made." In order to ascertain the origin and reasoning in support of this statement of the law, it becomes necessary to re-examine the authorities relied upon, inasmuch as this court has adopted a rule formulated by the supreme court of Illinois and followed by the supreme court of Kansas. They are Railroad Co. v. Campbell, 170 Ill. 163, 49 N.E. 314; Lasater v. Fant (Tex. Civ. App.), 43 S.W. 321; M., K. & T. Ry. Co. v. Bagley, 65 Kan. 188, 69 P. 189, 3 L.R.A., N.S., 259. The supreme court of Kansas in the Bagley case, last cited, said, speaking by Johnson, J.: "The petition first filed was in good time, but that pleading was held bad, in that it did not state a cause of action." M., K. & T. R. Co. v. Bagley, 60 Kan. 424, 56 P. 759. "The amended petition on which the second trial was had was filed May 15, 1899, more than six years after the causes of action pleaded had accrued. The statute of limitations barred such causes in three years after they had accrued, and, if the original petition did not arrest the statute, the causes were all barred." After stating the general rule that a new and distinct cause of action barred by the statute could not be ingrafted on a petition by way of amendment, so as to deprive the defendant of the defense of the statute of limitations, and citing cases, the court, continuing, said: "Those cases differ somewhat from the case in hand, as in them the new causes were added by amendment to other and distinct causes that had been previously pleaded, while here the amendment sets up a cause of action where none whatever had been previously alleged. The principle which ruled the cited cases, however, applies. A cause of action pleaded by way of amendment for the first time is new, and the departure is as great as the ingrafting of a distinct cause of action which is barred upon an original one that is not barred. . . . The supreme court of Illinois had this identical question before it for consideration, and while holding that, if the action was originally brought within the statutory period, and an amendment is afterward filed which simply restates the right of recovery originally pleaded, the amendment is treated as filed at the time the action was brought, and the statute of limitations will not operate as a bar; but it was also held where an original declaration fails to state any cause of action whatever, and an amended declaration does, upon an issue of the statute of limitations, the amended declaration will be deemed to have been filed, and the action to have been instituted at the time of the making of such amendment, although such amendment is confined to a more complete statement of the same cause or right attempted to be stated in the original. See, also, Illinois C.R. Co. v. Campbell, 170 Ill. 163, 49 N.E. 314; Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 266; Selma R. & D.R. Co. v. Lacey, 49 Ga. 106; Phelps v. Illinois C.R. Co., 94 Ill. 548; Lasater v. Fant (Tex. Civ. App.), 43 S.W. 321; Sicard v. Davis, 6 Pet. 124, 8 L.Ed. 342." Doster, C.J., dissenting, says: "I dissent from the judgment in this case and from so much of the opinion as applies the statute of limitations to the case of defendant in error, the plaintiff below, and am authorized to say for Justice Ellis that he also dissents. The majority opinion is entirely too technical. The original petition was defective because incomplete in its formal allegations. It simply omitted the statement of the consideration for the promise sued on. The amendment merely supplied the allegation of that element of the contract. Now, in such cases, we understand the rule to be that petitions are amendable even after the running of the statute of limitations; that is, the incomplete allegations may be helped out by amendment. However, one may not introduce a new cause of action into a case by way of amendment of his petition after the period of limitation has run against it. He may not under the guise of amendment change his cause of action from one sued on during its life to one against which the bar of the statute has run; nor may he by way of amendment tack a barred cause of action onto one against which the statute has not run. The decisions cited in the majority opinion are instances of changes from one cause of...