Clark v. Gulf, M. & N. R. Co

• Citation: 97 So. 185,132 Miss. 627
• Decision Date: 02 July 1923
• Docket Number: 23275
• Parties: CLARK v. GULF, M. & N. R. CO
• Court: United States State Supreme Court of Mississippi

97 So. 185

132 Miss. 627

CLARK v. GULF, M. & N. R. CO

No. 23275

Supreme Court of Mississippi

July 2, 1923

Division B

Division B., January 1, 1920

1. MASTER AND SERVANT. Declaration averring injuries in wreck of gasoline car on railroad held sufficient under statute.

A declaration which avers that the plaintiff sustained injuries in the wreck of a gasoline car which was being operated on the track of a railroad company, a common carrier, states a cause of action under section 1985, Code 1906; section 1645 Hemingway's Code.

2. MASTER AND SERVANT. Declaration held not to state cause of action under common law or federal act.

A declaration of this kind does not state a cause of action under the common law or under the federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665).

3. LIMITATIONS OF ACTIONS. Second count to original declaration stating new cause of action filed after two-year statute of limitations under Federal Employers' Liability Act held barred.

Where the original declaration avers no facts of negligence but is drawn under section 1985, Code 1906 (section 1645 Hemingway's Code), and where a second count is filed after the expiration of the two-year statute of limitations provided in the Federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665), which second count is based upon this act and avers facts of negligence on the part of the master, then the second count states a new cause of action, and the plea of the statute of limitations thereto is good.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by Rufus E. Clark against the Gulf, Mobile & Northern Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

Rawls & Hathorn, for appellant.

The reversal or affirmance of this case must in the final analysis, rest on whether or not the second count of the declaration states a new and different cause of action from that stated in the first count.

The original declaration was drawn with the idea that the case would be tried under the state laws instead of the Liability Act, and the only negligence charged was that created by the Mississippi "prima facie" statute, Hemingway's Code, section 1645. In other words the declaration charged negligence by the lack or "want of reasonable skill and care" on the part of appellee, but it did not set out in detail nor did it attempt so to do, the specific acts of negligence. We charged the injury was inflicted by the running of the motor car, and the law says that if this is charged or proven, that it charges and establishes "want of reasonable skill and care." When this matter was argued and decided by the lower court, the case there cited by appellee and stressed by it, and the one which the trial court stated pursuaded it that the law was with the appellee, was the case of The Union Pacific Railroad Co. v. Wyler, 39 Law Ed. 983.

On the theory announced by Chief Justice WHITE that it was a departure from law to law, it was held in that case that the running of the statute of limitations as to the second petition was not stopped by the filing of the first.

We do not think the Wyler case applicable to the case at bar at all. Certain it is that the bringing of one count under the state law, and another under the Federal law, is not a departure from law to law, as held by the courts of Mississippi, as well as that of the great majority of other states and by inference, at least, if not by direct holding by the supreme court of the United States. Broom v. Southern Railroad Company, 115 Miss. 493, 76 So. 525; M. K. & T. R. R. v. Wulf, 57 L.Ed. 355, Ann. Cas. 1914 B. 134; Curtice v. Chicago & N.W. R. Co., L. R. A. 1916-D, 316; Kinney v. Hudson River Company, 162 N.Y.S. 42; Koennecke v. Seaboard Air Line R. Co., 85 S.E. 374 (S. C.), 60 L.Ed. 324; Louis v. I. C. R. R. Co. (La.), 72 So. 788; Nashville C. & St. L. R. v. Anderson, L. R. A. 1918-C, 1115, Ann. Cas. 1917-D, 902; Cincinnati, etc., R. Co. v. Goode, 173 S.W. 329; Smith v. A. C. L. R. Co., 210 F. 761; Wilson v. Denver & R. G. R. Co. (Col.), 187 P. 1027; Gainesville Midland R. Co. v. Vandiver, 80 S.E. 997; Bashom v. Chicago G. W. & R. Co. (Iowa), 157 N.W. 192; Jorgenson v. Grand Rapids & I. R. Co. (Mich.), 155 N.W. 535; Thornton's Federal Employers Liability Act (3 Ed.), page 307, par. 205.

We shall next address ourselves to the question of whether or not the specific acts of negligence charged in the second count are a departure from fact to fact, or to state it as practically all the courts express it: The statement of a new and different cause of action from that stated in the first count. If the identical acts of negligence charged in the second count had been charged in the first, we take it our inquiry would be at an end, and counsel for appellee would admit that it was not a new cause of action insofar as the acts of negligence charged are concerned. However, the first count does not charge any specific act of negligence but charges negligence only in general terms. That is to say it charges in legal effect, that appellant was injured by appellee's negligence in the operation of its motor car, but it does not charge in what this negligence consists.

Proof of injury under the prima-facie statute is in law proof that appellee was negligent.

It is claimed that the prima-facie statute puts the burden of proof on the defendant. We think this is an erroneous statement, though it is true that the effect of the statute is to burden defendant with the necessity of proving itself free from negligence. A. & V. R. R. Co. v. Thornhill, 106 Miss. 409. See 6 Words and Phrases (1st Series), 5549; Coffin v. U.S. 39 L.Ed. 481; 3 Words and Phrases (2nd Seres), 1175-1176.

Addressing ourselves now to the question of what constitutes a new or different cause of action, we want to study for a moment the definition or meaning of the term, "cause of action." 2 Words and Phrases (First Series), 1015, et seq; Emory v. Hazard Powder Co., 22 S.C. 476, 481, 53 Am. Rep. 730; Matz v. Chicago & A. R. Co. (U. S.), 85 F. 180, 187; Durham v. Spence, L. R. 6 Ex. Cas. 46; Hibernia Nat. Bank v. Lacombe, 84 N.Y. 367, 384, 38 Am. Rep. 518; 1 Words and Phrases (Second Series), 600; Excelsior Clay Works v. De Camp, 80 N.E. 981, 982, 40 Ind.App. 26 (Citing Bouv. Dist., Bliss, Code Pl., sec. 113); Doyle v. Southern Pac. Co., 108 P. 201, 211, 56 Or. 495; Ft. Wayne Iron and Steel Co. v. Parsell, 94 N.E. 770, 776, 49 Ind.App. 565; Pom. Code Proc. (4 Ed.), 459, sec. 346 et seq; Dillon v. Great Northern R. R. Co., 100 P. 960, 963, 38 Mont. 485; Cohen v. Clark, 119 P. 775, 777, 44 Mont. 151; Anderson v. Wetter, 69 A. 105, 109, 103 Me. 257, 15 L. R. A. (N. S.) 1003; 1 Corpus Juris, 936, 937; Thorntons Federal Employers Liability Act (3d Ed.), p. 307, 17 R. C. L. 814-815, 818-820; L. & N. R. R. Co. v. Stewart (Ky.), 161 S.W. 557.

Alabama Consolidated Coal and Iron Co. v. Heald, 45 So. 687, has an exhaustive analysis of the question now being considered. See also Missouri Pacific Ry. Co. v. Moffott (Kan.), 72 A. S. R. 344; Hogenauer v. Detroit Copper Mining Co. (Ariz.), 124 P. 803, Ann. Cas. 1914-C, 1016; Alabama R. R. Co. v. Thomas, 18 A. S. R. 124; North Chicago Street R. R. Co. v. Aufman, 112 A. S. R. 207 (Ill.).

In Chobanian v. Washburn Wire Co., reported in Ann Cas. 1913-D, 730 (Rhode Island), the rule is declared to be: "The allowance of an amendment to a declaration, setting forth an additional ground of negligence as the cause of the same injury does not amount to the statement of a new cause of action, and the statute of limitations is stopped on the filing of the original complaint."

In support of this general rule there will be found on pages 743 and 744 of Ann. Cas. 1913-D illustrations where the rule has been applied. N. O. & N. E. R. R. Co. v. Harris, 62 L.Ed. 1167, was reversed and remanded not on the pleadings, but on two erroneous instructions. Under our procedure an action is begun when the declaration is filed. Hemingway's Code, Sec. 511.

Both our statutes on amendments, Hemingway's Code, section 558, and the trend of the jurisprudence of today is to be extremely liberal in the matter of amendments to pleadings, to the sole end that the "merits of the controversy between the parties may be brought fairly to trial." See Roberts Federal Employers' Liability, page 1689.

Ellis B. Cooper, for appellee.

The principal contention of counsel is that the filing of the second count relates back to the filing of the suit and for that reason the plea in the instant case of limitation is not good.

We desire to emphasize the fact that the original suit did not state a cause of action arising from the common law. Appellant does not contend that. The first count of the declaration which was filed within the two years states a cause of action simply because of a statute of the state of Mississippi. Had that statute not been enacted no such count would have been drawn. Had that statute not been enacted the appellant could not have travelled at all in the courts of Mississippi. His suit, therefore, must have been one arising because of and by reason of a statute of Mississippi. His first count had no force except that force which our prima facie statute imparted to it.

Why the necessity of an amendment? Simply because the supreme court of the United States had said on several occasions that our prima facie statute does not apply to actions arising under the Federal act. If it does not apply in the making out of a case under the Act of Congress, it certainly cannot be said to make out a case in the declaration.

It follows, therefore, that the first count states no cause of action at common law, but states a cause of...