Cahill v. Ill. Cent. R. Co.

• Decision Date: 10 March 1908
• Citation: 115 N.W. 216,137 Iowa 577
• Parties: CAHILL v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

137 Iowa 577

115 N.W. 216

CAHILL

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

March 10, 1908.

Appeal from District Court, Buchanan County; Franklin C. Platt, Judge.

Action to recover damages for personal injuries received by plaintiff while in defendant's employ. Plaintiff's motion for leave to amend his petition being overruled, defendant by leave of court withdrew its answer, and interposed a demurrer to plaintiff's petition, which was sustained, and plaintiff appeals. Reversed.J. J. Ney and Roy A. Cook, for appellant.

W. J. Knight (J. M. Dickinson, of counsel), for appellee.

McCLAIN, J.

After the expiration of the two years which, under our statute of limitations, is the period within which plaintiff's action should have been brought, and when the case was called for trial on the issues raised on defendant's answer to plaintiff's petition, plaintiff asked leave to file an amendment to his petition by adding thereto the averment that at the time of receiving the injury complained of and prior thereto the plaintiff was not guilty of any want of ordinary care that caused said injury, or contributed thereto. This application to amend was overruled on the ground that the amendment introduced a new cause of action, which was barred by the statute of limitations. Thereupon the defendant was granted leave to withdraw its answer in which it had specifically averred want of care and caution on plaintiff's part directly contributing to the injury and other matters of defense in connection with a general denial, and to interpose a demurrer to plaintiff's petition on the ground that it contained no averment of freedom from contributory negligence. This demurrer was sustained, and judgment was rendered against the plaintiff.

It is conceded to be the rule in this state, although perhaps contrary to the weight of authority elsewhere, that a plaintiff suing for damages on account of personal injuries due to the defendant's negligence must specifically allege his own freedom from any negligence contributing to such injuries, and a failure to do so is a sufficient ground of demurrer. Gregory v. Woodworth, 93 Iowa, 246, 61 N. W. 962;Rabe v. Sommerbeck, 94 Iowa, 656, 63 N. W. 458;Stuber v. Gannon, 98 Iowa, 228, 67 N. W. 105. If defendant had demurred to plaintiff's petition on this ground before answering, the demurrer should have been sustained. But the plaintiff would have had the opportunity to amend and cure the defect by adding the essential averments. The question we now have is whether an amendment adding such averments after the statutory period of limitation has expired sets up a new cause of action, and one which is therefore barred, or whether it simply makes good the allegations as to the original cause of action insufficiently pleaded within the statutory period. It is not easy to point out with accuracy the distinction between the insufficient pleading of a cause of action which may be made good by amendment after the statutory period of limitations and the total failure to plead a cause of action which cannot be cured without setting up practically a new cause of action, which cannot, of course, be done after the expiration of the limitation period. In an action for breach of contract the plaintiff may amend by eliminating some of the provisions of the contract on which he has relied. Williamson v. Chicago, R. I. & P. R. Co., 84 Iowa, 583, 51 N. W. 60. He may aver terms of the contract different from those alleged in his original petition. Taylor v. Taylor, 110 Iowa, 207, 81 N. W. 472. But he cannot set up a substantially different contract as the basis of his cause of action. Van Patten v. Waugh, 122 Iowa, 302, 98 N. W. 119. In an action in tort to recover damages for defendant's wrongful acts plaintiff cannot by way of amendment after the statutory period of limitation set up a substantially different wrong from that alleged in his petition. Brooks v. Seevers, 112 Iowa, 480, 84 N. W. 517. But with reference to the alleged negligence of the defendant, relied upon as constituting the basis for recovery of damages, he may amplify his charges of negligence and make new specifications. Thayer v. Smoky Hollow Coal Co., 129 Iowa, 551, 105 N. W. 1024;Gordon v. Chicago, R. I. & P. R. Co., 129 Iowa, 747, 106 N. W. 177. As further illustrations of the liberality with which amendments are to be allowed if the substantial cause of action is not changed, see Anderson v. Acheson, 132 Iowa, 744, 110 N. W. 335, 9 L. R. A. (N. S.) 217;Daley v. Gates, 65 Vt. 591, 27 Atl. 193;Jacobs v. Gilreath, 41 S. C. 143, 19 S. E. 308, 310. In an action to recover damages the cause of action is not on the one hand the damage suffered by plaintiff, nor on the other hand the mere evidentiary facts showing defendant's wrong. But it is the wrong itself done by defendant to plaintiff, that is the breach of duty by the defendant to the plaintiff, whether it be a duty arising out of contract or of tort. Williamson v. Chicago, R. I. & P. Ry. Co., 84 Iowa, 583, 51 N. W. 60;Taylor v. Taylor, 110 Iowa, 207, 81 N. W. 472;Kuhns v. Wis. I. & N. R. Co., 76 Iowa, 67, 40 N. W. 92;Terre Haute & I. R. Co. v. Zehner, 166 Ind. 149, 76 N. E. 169, 3 L. R. A. (N. S.) 277, and note. In Box v. Chicago, R. I. & P. Ry. Co., 107 Iowa, 660, 78 N. W. 694, there are expressions indicating the view that the cause of action consists of those facts which it is necessary for plaintiff to prove in order that he may recover in his action. But the cases do not sustain so broad a statement of the rule. Those already cited furnish illustration supporting the proposition that facts may be added by way of amendment without which plaintiff could not recover, and which could not have been proven in the absence of the amendment, without changing the cause of action as originally alleged. The case last cited is distinguished in Taylor v Taylor, 110 Iowa, 207, 81 N. W. 472, and Gordon v. Chicago, R. I. & P. R. Co., 129 Iowa, 747, 106 N. W. 177, where it is held that, if the effect of the amendment is not to add a new cause of action or substitute a different one, but merely to correct averments of fact necessary to clearly state on what the original petition was in reality founded, it does not state a new cause of action. In the case before us the amendment relates to the same transaction as that designated by the original petition; and while identity of transaction is not conclusive for the reason that the same transaction may furnish the basis for distinctly different causes of action, yet where the breach of duty alleged in the original petition remains the same as that charged with the addition of the amendment, we think no new cause of action can be said to have been introduced by the amendment.

The fact that for the want of some required averment plaintiff's petition is subject to demurrer does not necessarily show that an amendment adding the necessary averment sets up a new cause of action. The grounds of demurrer are statutory (see Code, § 3561), not necessarily logical, and some of them relate to matters which clearly constitute no essential part of the cause of action. The want of capacity on the part of the plaintiff to maintain the cause of action, as appearing on the face of the petition, may be thus raised, although the cause of action may be adequately averred. Likewise the pendency of an action thus appearing may be raised by demurrer, although it does not show the want of a cause of action, but only matter of abatement. The bar of the statute of limitations appearing on the face of the pleading is a ground of demurrer, although plainly the bar of the statute relates to the right to maintain the action, and not the existence of a cause of action, for it has always been held that the statute of limitations relates to procedure and not the right. Failure of the petition to allege the contract sued on to be in writing when by the statute of frauds it is required...