Buel v. St. Louis Transfer Co.

• Decision Date: 31 March 1870
• Citation: 45 Mo. 562
• Parties: SAMUEL F. BUEL and RUTH BUEL, Respondents, v. THE ST. LOUIS TRANSFER COMPANY, Appellant.
• Court: Missouri Supreme Court

45 Mo. 562

SAMUEL F. BUEL and RUTH BUEL, Respondents,

v.THE ST. LOUIS TRANSFER COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Breckinridge & Clark, for appellant.

The court below erred in allowing plaintiff to amend, because amendment changed substantially the claim and defense. It substituted a new and wholly different action for the old one. (30 Ga. 873, in U. S. Dig. 1866, No. 26, p. 360; Miller v. McIntire, 1 McLean, 83; 10 B. Monr. 83.)

J. C. Morris, and Moodey and Hogan, for respondents.

I. The amendment to the petition, making Samuel F. Buel a co-plaintiff instead of a co-defendant, was warranted by our

statute, and did not operate as the institution of a new suit. (Gen. Stat. 1865, ch. 168, §§ 3, 5; Thompson et al. v. Morely, 29 Mo. 477.)

II. The word “undue” in plaintiff's instruction is surplusage, and conveys no stronger meaning than the word “negligence” standing alone. (McPheeters v. H.. & St. Jo. R.R., 45 Mo. 22.)

III. The evidence offered by defendant, that the plaintiffs were divorced, was immaterial

CURRIER, Judge, delivered the opinion of the court.

This is an action brought under the statute for the recovery of damages. (Wagn. Stat. 519, § 2.) It was originally instituted by the plaintiff, Ruth Buel, as the mother of a minor child, who is alleged to have been fatally injured through the carelessness of one of the defendant's servants. Subsequently to the filing of the petition, and eighteen months after the accruing of the cause of action, the petition was amended so as to introduce Samuel F. Buel, the father of the deceased child, as a co-plaintiff in the action. By the statute (Wagn. Stat. 520, § 6) this class of actions is barred in one year from the time they accrue. Unless the amendment, therefore, has relation to the commencement of the suit, and takes effect, as regards the limitation, from that date, then the action is clearly barred; for it can not be sustained as to one of the plaintiffs, and not as to the other. If either is barred, both are. (See authorities cited below.) Whether an amendment by relation takes effect from the commencement of the suit, or only from the time of its filing, depends on circumstances. The rule is this: where the amendment sets up no new matter or claim, but is a mere variation of the allegations affecting a demand already in issue, then the amendment relates to the commencement of the suit, and the running of the statute is arrested at that point; but where the amendment introduces a new claim, not before asserted, then it is not treated as relating to the commencement of the suit, but as equivalent to a fresh suit upon a new cause of action--the running of the statute continuing down to the time the amendment is filed. (Sto. Eq. Pl., § 904; Holmes v. Moreland, 1 McLean, 10; Miller's Heirs v. McIntire, id. 85; 6 Pet., S. C., 61; Dudley v. Price, 10 B. Monr. 88, Marsteller v. McLean, 7 Cranch, 156; Bradford v. Edwards, 32 Ala. 628; King v. Avery, 37 Ala. 169.)

In the case before us, the amendment, in our view, introduced no new claim or cause of action. It does not, in fact, even introduce a new party. Buel was originally joined as a defendant, as in a chancery proceeding, on the ground that his assent to becoming a co-plaintiff had not then been obtained. By the amendment his position was changed from that of a co-defendant to that of a co-plaintiff. That was all. The original petition set out the entire cause of action as fully as the second, and fully stated Buel's paternity of the child, and his title and interest in the subject of the suit. He was assigned, however, to the wrong side of the cause. The amendment simply corrected this mistake. It did not introduce any new matter. We think, therefore, that, under the rule already given, the amendment must be treated as having relation to the original commencement of the suit, thus rescuing the...