Broom v. Southern Railway in Mississippi

• Decision Date: 08 October 1917
• Docket Number: 19599
• Citation: 115 Miss. 493,76 So. 525
• Court: Mississippi Supreme Court
• Parties: BROOM v. SOUTHERN RAILWAY IN MISSISSIPPI

76 So. 525

115 Miss. 493

BROOM v. SOUTHERN RAILWAY IN MISSISSIPPI

No. 19599

Supreme Court of Mississippi

October 8, 1917

Division A

APPEAL from the circuit court of Lowndes county, HON. T. B. CARROLL Judge.

Suit by Mrs. Ida K. Broom against the Southern Railway in Mississippi. The court overrules plaintiff's demurrer to defendant's plea of the statute of limitations and plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and case remanded.

James T. Harrison, for appellant.

Amendments 25 Cyc., page 1305, "Amendment to Pleadings." "An amendment of a declaration, petition, or complaint which sets up no cause of action or claim and makes no new demand relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point." (The note, No. 61, relates to many U. S. authorities and to many state authorities). In fact this principle is recognized to such an extent that it has become elementary; to hold to the contrary would be to abolish section 775 of our Code and the numerous Supreme court decisions on that subject. Our law favors amendments to such an extent as to make them matters of right, for their purpose is a perfect pleading. Appellee takes the contrary view and says that they destroy them.

This principle is well set out in Greenwood Grocery Co. v. Bennett et al., in haec verba. "The courts of law are organized for the purpose of trying causes on their merits, and only in exceptional cases should the trial court refuse to permit amendments of pleadings or preceedings." Yet, in this cause the amendment was invited into the temple of justice by suggestion of appellee, only to have it thrown out at the alter, as an intruder.

This amendment "set up no cause of action or claim and made no new demand." So it relates back to the commencement of the action.

In Hardie v. Bulge, 66 Miss. 577, 6 So. 186, the court says: "A different state of facts from these averred in the bill may be set up by way of amendment, if the character of the relief sought remains the same and this, notwithstanding the averments in the amendments are inconsistent with these of the original bill; provided they are not inconsistent with its purpose and the relief originally sought."

This goes much further than we ask for especially in view of the fact that appellee plead the objection that necessitated the amendment. In Corpus Juris, "A to Adult" page 1159 we find as follows: "In Federal Courts." The Federal courts will follow the practice of the state where the action is brought, in determining when the action is commenced (except with regard to suits in equity and in admiralty) and note "11" to this section of text 410 cites quite a number of authorities, several being federal. Section 413 on said page says: "Effect of Amendment." And amended declaration or complaint which does not introduce a new cause of action relates back to the original commencement of the action," (its note (20) cites quite a number of authorities, all federal) "and cannot be considered as the beginning of a new action as of the date of the amendment." (Note 21 cites quite a number of authorities, mostly federal.) This is conclusive, for any other interpretation would be like the monkey "far fetched and full of nonsense."

Same authority says that "In Mississippi," "The action shall be considered to have been commenced at the time of the filing of the declaration if summons is issued thereon." (page 1158.)

25 Cyc., page 1020, under action of tort says: "The rule in favor of the lex fori, in determining what law governs as to the limitations of actions, applies to actions for torts, as for instance, actions for damages for personal injuries." (Within a number of references in notes 80 & 71.)

This very case except as to name, etc., has recently been decided by the supreme court of Wisconsin in the cause of F. E. Curtice, Appellant, v. Chicago & Northwestern Railway Company, Respondent, Reported in L. R. A., 1916D., page 316.

The plaintiff sued it as an intrastate railway within the two years. Defendant plead interstate traffic; Plaintiff, amended in that respect. The two years had passed before amendment; defendant demurred, which was sustained by the lower court--all of which happened in this case.

The supreme court of Wisconsin reversed it (as we hope for in this instance). The court said: "The point involved upon this appeal, under the assignments of error is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action under the state law, and that under the federal act, while on the part of the respondent it is insisted that the original complaint set up a cause of action under the state law, and that the amendment changed it from a cause of action under the state law to one under the federal act. It is obvious that but one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained, the parties were engaged in inter-state commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint, and the defects were cured by the amendment. But one cause of action was stated. The amendment related back to the original complaint and became a part of it; hence the statute of limitation was no defense to it, quoting from Missouri, K & T. R. Co. v. Wulf, 226 U.S. 570, 57 L.Ed. 355, 33 S.Ct. 135, Ann. Cas. 1914B, 104; Gainsville Midland R. Co. v. Vandiver, 141 Ga. 350, 80 S.E. 997; Bixler v. Pennsylvania Co. (D. C.), 201 F. 553, Smith v. Atlantic Coast Line R. Co., 127 C. C. A. 311, 210 F. 761, Cincinnati N. O. & T. P. R. Co. v. Goode, 163 Ky. 60, 173 S.W. 229; Vickery v. New Lenden Northern R. Co., 87 Conn. 634, 89 A. 277; Schieffelin v. Whipple, 10 Wis. 288 154 N.W. 449. And again, "There is another feature of this case which is worthy of notice. When the defendant answered the original complaint, it set up the facts which were omitted in the plaintiff's defective complaint and necessary to perfect the cause of action under the Federal act, and which were afterwards set up by plaintiff in the amendment complained of the defendant was therefore in no way surprised or prejudiced by the amendment. Doubtless the case could have gone to trial on the pleadings as originally framed, and the complaint on the trial amended in accordance with the issues made by the pleadings as originally framed." Callahan v. Chicago & N.W. R. Co., 161 Wis. 288, 154 N.W. 449; Bieri v. Fonder, 139 Wis. 150, 120 N.W. 862; Gerber v. Duluth S. S. & A. R. Co., 159 Wis. 414, 150 N.W. 489; Wabash R. Co. v. Hayes, 234 U.S. 86, 58 L.Ed. 1226, 34 S.Ct. 729, 6 N. C. C. A. 224. As said in Union O. R. Co. v. Wyler, 158 U.S. at pp. 297, 298, 39 L.Ed. 990, 991, 15 S.Ct. 882: "The whole doctrine of relation rests in a fiction of law, adopted to subserve, and not to defeat, rights and justice." "We are convinced that the amendment did not introduce a new cause of action, but cured the defective cause of action originally pleaded; hence the amendment was proper." "The judgment is reversed, and the cause remanded for further proceedings according to law."

To show that the case above quoted and the one at bar are twins both as to law and fact, we quote the statement of the former to wit: "Among other things, the defendant set up facts showing that at the time of injury the plaintiff and defendant were engaged in interstate commerce, and that the cause of action, if any existed, was under the Federal act. (Act April 22, 1908, chap. 149, 35 Stat. at L. 65; U. S. Comp. Stat. 1913, 865-8655). Not under the law of the state of Wisconsin, judgment was demanded by defendant abating the action."

Afterwards the plaintiff was allowed to amend his complaint by adding allegations to the effect that defendant's road runs through the state of Michigan, and that plaintiff and defendant were at the time of the injury alleged, engaged in interstate commerce. Defendant then amended its answer, setting up the statute of limitations. At the time of the amendment of the complainant, two years from the time of the alleged injury had expired. The court below held that the original cause of action was one under the state law, and that the amendment of the complaint set up a cause of action under the federal act, and that such action was barred by the two-year statute, and sustained the defendant's demurrer and dismissed the complainant. The plaintiff appealed to this court from the judgment dismissing the complaint. This case was decided February 22, 1916, hence is the latest of which we have knowledge.

The supreme court of the United States made its latest deliverance on this subject in the case of Missouir Kansas & Texas Railway Company, v. Wolf, Supreme Court Reporter (National Reporter System) 226-230, Vol. 33 pages 135-138 to wit: As the summary of H. D. Miner in his pamphlet, "The federal Employers' Liability Act" reprinted from the Virginia Law Review for December, 1913, is to the point, we quote it. Where the action is commenced by a relative of the decedent in his individual capacity to recover under the state statute, but the facts stated show a case under the federal act, the court may, and ordinarily should, allow an amendment so as to substitute the personal representative of the decedent as plaintiff, and this may be done although the statutory...