Brackhahn v. Nordling

• Decision Date: 09 September 1974
• Citation: 526 P.2d 221,269 Or. 667
• Parties: Jerry Russell BRACKHAHN, Appellant, v. R. A. NORDLING and J. R. Baker, dba Amato Lanes & Restaurant, Respondents.
• Court: Oregon Supreme Court

Page 221

526 P.2d 221

269 Or. 667

Jerry Russell BRACKHAHN, Appellant, v. R. A. NORDLING and J. R. Baker, dba Amato Lanes &

Restaurant, Respondents.

Supreme Court of Oregon.

Argued and Submitted June 3, 1974.

Decided Sept. 9, 1974.

Deane Sterndale Bennett, Beaverton, argued the cause and filed a brief for appellant.

Charles D. Ruttan, Portland, argued the cause for respondents. With him on the brief were Morrison, Bailey, Dunn, Cohen & Miller, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

DENECKE, Justice.

This issue is whether the plaintiff's amended complaint, which was filed after the statute of limitations had run, stated a 'new' cause of action and, therefore, could not relate back to the original complaint.

Plaintiff filed his first complaint on June 2, 1972. He alleged that on July 16, 1970, the defendants 'wrongfully and willfully caused plaintiff to be arrested' and 'caused plaintiff to be imprisoned in the city jail * * *.' He further alleged '(t)hat plaintiff was charged with and acquitted of the crime of trespassing.'

Plaintiff filed amended complaints. The third amended complaint contained the allegations quoted above. Defendants moved to strike those allegations in the third amended complaint and defendants' motion was granted.

In May 1973 plaintiff filed a fourth amended complaint alleging that on July 16, 1970, defendants 'maliciously and without reasonable or justifiable cause made a sworn complaint against plaintiff charging him with the offense of trespass * * *; whereupon a warrant was issued and plaintiff was arrested and taken into custody * * *.' Plaintiff further alleged: '(T)he charge against plaintiff was at said time dismissed for lack of evidence.'

The defendants filed a demurrer upon the grounds that the complaint failed to state a cause of action and the plaintiff had not commenced his action within the prescribed time. The trial court sustained the demurrer without specifying upon which ground. The order stated that the plaintiff was 'precluded from pleading over on the same cause of action.' Plaintiff moved to be permitted to file an amended complaint 'pleading a Cause of Action in Malicious Prosecution.' No order on this motion is in the trial court file. The trial court subsequently entered an order of dismissal from which plaintiff appeals.

The statute of limitations for both false arrest and malicious prosecution is two years. If the fourth amended complaint cannot be related back to the original complaint, the plaintiff's complaint was correctly dismissed because it was not brought within the period of limitations.

We have been faced with a similar problem in various contexts. A discussion of some of our decisions indicates the trend we have followed.

The plaintiff in Richardson v. Investment Co., 124 Or. 569, 264 P. 458, 265 P. 1117 (1928), filed a complaint to recover upon an express contract in which the defendant promised to pay an agreed price for the installation of a sidewalk. This court reversed the judgment for the plaintiff and after the statute of limitations had run the plaintiff filed an amended complaint seeking to recover upon the theory of quantum meruit. We held the plaintiff could recover because 'the change is only that of form.' 124 Or. at 571--572, 264 P. at 459.

In Fox v. Ungar, 164 Or. 226, 98 P.2d 717 (1940), the plaintiff administrator filed a wrongful death action; within the period of the statute of limitations the complaint was amended and the mother of the decedent was named plaintiff. After the statute had run the plaintiff amended her complaint and alleged a cause of action under the Oregon Employers' Liability Act. The Employers' Liability Act imposes a higher standard of care. We held the amended complaint stated a new cause of action and could not relate back.

Four years later in Ross v. Robinson, 174 Or. 25, 147 P.2d 204 (1944), we overruled Fox v. Ungar, supra (164 Or. 226, 98 P.2d 717). Frank Ross sued as administrator for damages for the benefit of the estate alleging the defendant wrongfully caused the death of the decedent. After the statute of limitations had run the complaint was amended and Frank Ross sued as an individual and widower of the decedent and sought damages for [269 Or. 67

1] himself as the decedent's sole beneficiary. We held the amended complaint related back and the plaintiff was not barred by the statute of limitations.

In Drake Lumber Co. v. Paget Mortgage Co., 203 Or. 66, 274 P.2d 804 (1955), the plaintiff filed a complaint to foreclose a mechanic's lien for materials delivered. Plaintiff did not allege that it had given notice to the owners that it was delivering materials to the builder. This is a statutory requirement. After the statute of limitations had run the plaintiff amended its complaint and alleged the builder was the agent of the owner. If proved, this fact would negate the necessity of giving the notice of delivery of materials to the owner. We held that although the original complaint may not have stated a cause of action, the amended complaint could relate back and the suit could be maintained.

In Mills v. Feiock, 229 Or. 618, 368 P.2d 327 (1962), the plaintiff filed a petition in the probate court. Petitioner alleged he was a relative of the decedent and asked that the will be set aside. He alleged in conclusory terms that the executor had unduly influenced the decedent which resulted in her devising the executor her property. He further alleged the property 'in good conscience and law belongs to the petitioner.' 229 Or. at 620, 368 P.2d at 328. One question was whether the petitioner could amend his petition after the statute of limitations had run and remedy the defects in the petition. We pointed out the numerous respects in which the petition was deficient but allowed an amendment and stated: 'But on this question we have adopted a liberal rule * * *.' 229 Or. at 625, 368 P.2d at 330.

Credit Bureaus v. Allen, 251 Or. 616, 447 P.2d 300 (1968), is a clear illustration of when relating back should not be allowed. The plaintiff filed a complaint seeking money due for personal services. After the statute of limitations had run, the plaintiff amended its complaint seeking money due for the sale and delivery of 10 cows. We held the amended complaint could not relate back as it related to an entirely different subject than the first complaint.

Not always clearly stated, but clearly implied in our decisions, is the rationale that an amended pleading should be permitted to relate back if the defendant is not prejudiced. In those cases in which we held the amended complaint could relate back, the original complaint apprised defendant that the plaintiff was claiming relief because of defendant's conduct at a certain time and place. If the amended pleading continues to claim relief because of that same conduct of defendant but upon a different theory, the defendant is not prejudiced because of a change in theory or a change in the cause of action. The defendant is alerted to plaintiff's claim and has the opportunity to investigate and do whatever is believed necessary to protect itself. The claim does not become stale because the legal theory or cause of action was changed in the amended complaint.

Mr. Justice Lusk was referring to this same rationale in Ross v. Robinson, supra (174 Or. at 38, 147 P.2d at 209), when he quoted Mr. Justice Holmes:

'With respect to a comparable situation, it was said by one of America's most illustrious judges:

"Of course, an argument can be made on the other side, but when a defendant has had notice from the beginning that The plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion...