Bush v. Kelley's Inc.

• Decision Date: 14 May 1969
• Docket Number: No. 68-470,68-470
• Citation: 247 N.E.2d 745,18 Ohio St.2d 89,47 O.O.2d 238
• Parties: , 47 O.O.2d 238 BUSCH, Appellee, v. KELLEY'S, INC., et al., Appellants.
• Court: Ohio Supreme Court

Page 89

18 Ohio St.2d 89

247 N.E.2d 745, 47 O.O.2d 238

BUSCH, Appellee, v. KELLEY'S, INC., et al., Appellants.

No. 68-470.

Supreme Court of Ohio.

May 14, 1969.

Syllabus by the Court

Where a petition, alleging wanton and intentional misconduct, is amended to allege simple negligence, such amendment does not have the effect of stating a new, independent and district cause of action, and where the amendment is made after the expiration of the time limited for the commencement of the action it relates back to the time the original petition was filed and the cause of action stated in the amended petition is not barred by such limitation of time.

This cause originated in the Court of Common Pleas of Franklin County.

The plaintiff in his petition alleges that, on or about October 27, 1962, he was forcibly ejected from a tavern operated by the defendants, resulting in the injuries of which he complains. On September 13, 1963, he filed a petition in the Common Pleas Court of Franklin County, alleging that he was a business invitee in the tavern operated by the defendants; that, without probable or reasonable cause, the defendants 'unlawfully, wantonly and wrongfully, maliciously and recklessly' made and perpetrated a brutal, violent and vicious attack upon him, and with great force and violence picked him up, carried him, hurled him through the door and into a car parked in front of the premises, resulting in the injuries complained of and for which he asked both compensatory and punitive damages.

On October 29, 1965, the plaintiff, with leave of court, filed an amended petition, alleging substantially the same incident but in somewhat different terms. Plaintiff, in the amended petition, alleges that he was unlawfully and with unnecessary force picked up, pushed and hurled out the front door into the parked car, eliminating the words 'recklessly,' 'wantonly,' 'wrongfully' and 'maliciously.' He alleges further that he was roughly and negligently ejected; that he had not been requested to leave; that he had not refused to leave; and that the defendants used force, when no force was necessary, and used greater force than was necessary.

An answer, filed by the defendants, consisted of a general denial and a specific plea of the statute of limitations.

On September 29, 1967, the trial of the cause began. After the opening statement of counsel for the plaintiff, which essentially set forth the content of the amended petition, the defendant moved that the amended petition be dismissed on the ground it was barred by the statute of limitations. The motion was allowed and, on October 6, 1967, a judgment of dismissal and final judgment for the defendants was entered on the journal.

The Court of Appeals held that the action was not barred by the statute of limitations, reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings. Thereupon, the defendants filed a motion to certify the case to this court on the ground that the judgment of the Court of Appeals was in conflict with the judgment of the Court of Appeals for Cuyahoga County in the case of Williams v. Pressman, 113 N.E.2d 395, 69 Ohio Law Abst. 470. The Court of Appeals granted the motion to certify.

Applegate, Bolon, Boyd & Alban and Robert E. Boyd, Jr., Columbus, for appellee.

Williams, Murray, Deeg & Ketcham, Gordon E. Williams, James D. Booker and Charles R. Andrews, Columbus, for appellant.

COLE, Judge.

The first and basic issue presented by the facts of this case involves the applicability of the two-year statute of limitation, applicable to actions for bodily injury, to the amended petition. If this had been the first petition filed, the statute would have run by the date of its filing, whether it be considered to state a cause of action in battery or in negligence. However, it was an amended petition, and the original petition was filed well within the statutory period of limitation for either battery or negligence. In Brown v. Cleveland Baseball Co., 158 Ohio St. 1, 106 N.E.2d 632, this court reaffirmed the holding of Louisville & Nashville Rd. Co. v. Greene, 113 Ohio St. 546, 149 N.E. 876, that where no new, independent cause of action, distinct from that contained in the original petition, is alleged in an amended petition, under our liberal statutory rules pertaining to amendment, the amendment could be made after the statute had run and relates back to the original filing of the petition.

The question thus raised is whether the amended petition sets up a new independent cause of action, distinct from that alleged in the original petition. Appellant contends that the original petition did not in any way state a cause of action in negligence but only one in assault and battery, and that the change in the amended petition to a cause of action in negligence was a change to a new cause of action which did not relate back, and hence is barred by the statute of limitations. This was essentially the position of the trial court when it granted defendant's motion for judgment made after the opening statement by plaintiff.

Analysis of the original petition reveals that the plaintiff alleged therein that he was a business invitee in the tavern operated by defendants; that 'without probable or reasonable cause' he was 'unlawfully, wantonly and wrongfully, maliciously and recklessly' attacked by defendants, picked up, carried, pushed and hurled through the door of the premises and into an automobile parked...