Cohen v. Bucey
| Decision Date | 09 July 1952 |
| Docket Number | No. 32915,32915 |
| Citation | 107 N.E.2d 333,158 Ohio St. 159 |
| Parties | , 48 O.O. 93 COHEN v. BUCEY. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Section 11363, General Code, which provides in part that, 'before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading * * * by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved,' must, under the requirements of Section 11345, General Code, be liberally construed with a view to substantial justice between the parties.
2. An amendment of a petition alleging negligent injury of the plaintiff by the defendant by adding thereto allegations characterizing such injury as wilful or intentional does not have the effect of stating an additional cause of action, such amendment may be made in the interest of justice after the expiration of the time limited for the prosecution of such an action, and such amendment relates back to the time when the action was commenced. Schweinfurth, Admr., v. Cleveland, C., C. & St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89, approved and followed.
This cause originated in the Court of Common Pleas of Summit County.
It is an action to recover damages for personal injuries which the plaintiff, Joseph Cohen, avers he suffered on April 21, 1949, when he was struck by defendant's automobile then being driven by the defendant within the confines of the parking lot opperated by the plaintiff.
The petition, filed September 20, 1949, contains certain specifications of negligence of the defendant, which it is claimed resulted in serious injuries to the plaintiff for which he prays damages in the sum of $15,000.
The defendant, by answer filed November 28, 1949, denies that he was negligent in the particulars stated in the petition, and as a second defense alleges that the plaintiff, by his own negligence, contributed to his injuries.
On May 28, 1951, the plaintiff filed an amendment to his petition which reads as follows:
'Wherefore, plaintiff prays as he has already prayed in his petition.'
To this amendment the defendant filed an answer and demurrer which reads as follows:
'Now comes the defendant and as to the portion of plaintiff's pleading not affected by the amendment to his petition reaffirms his answer thereto and further demurs to plaintiff's amended petition so far as it purports to state as a second and separate cause of action that defendant 'wilfully, wantonly, purposely and intentionally' injured plaintiff, for the reason that it appears from the face of such amended petition that plaintiff's action was not commenced within the time limited for the commencement of such action.'
The trial court, treating ther amendment to the petition as a second cause of action, sustained the demurrer on the ground that the plaintiff did not commence action on such cause within the period limited by the applicable statute of limitation and entered judgment for the defendant on that cause of action.
The Court of Appeals reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings.
The cause is before this court following the allowance of a motion to certify the record of the Court of Appeals.
Buckingham, Doolittle & Burroughs, Dwight Parsons and Hugh Colopy, Akron, for appellant.
Merryl F. Sicherman, Akron, for appellee.
The single question of law presented, as stated by the defendant, is: 'Does an amendment to a petition sounding in negligence which adds allegations of wilful and wanton misconduct introduce a new and different cause of action, so that it is not permissible after the running of the applicable statute of limitations?'
Section 11363, General Code, provides as follows:
The contention of the defendant is that negligence, wilfulness and wantonness being productive of different legal consequences are inconsistent, and, therefore, the amendment of a petition, seeking to recover damages on the ground of negligence, by averments that the operative acts stated in the petition were wilfully, wantonly, purposely and intentionally done states a new and different cause of action and is not authorized by the provisions of Section 11363, General Code.
This court had before it substantially the same question in the case of Schweinfurth, Admr., v. Cleveland C., C. & St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89, 93. The action in that case was brought to recover damages for the death of plaintiff's intestate, which it was alleged was caused by the wrongful acts, negligence and default of the defendant railroad company.
It was alleged in the petition that the death was caused when the defendant 'recklessly, carelessly, wantonly and wilfully' struck the decedent at a railroad crossing. The defendant urged that by the joinder of the allegations of negligence and wilful misconduct two causes of action were stated and that the court erred when it overruled the defendant's motion to require plaintiff to elect between such allegedly inconsistent causes of action. In reversing the judgment of the Circuit Court and affirming the judgment of the Court of Common Pleas, this court held as follows in the syllabus:
'A petition in such an action which states all the material facts of the transaction or occurrence resulting in the person's death contains but one cause of action, though they comprise a number of co-operating acts and omissions, some of which were willful or intentional, and others the negligent failure to observe proper care.'
The following language from the opinion by Williams, J., is pertinent:
'It is urged, however, with much earnestness, that the correct judgment was rendered, because several other errors assigned required the reversal. We will notice but two of them, as they seem to be most relied upon. One is that the court erred in overruling a motion made by the defendant to compel plaintiff to elect between inconsistent causes of action. This motion appears to be based upon the evident misconception that the petition states two causes of action,--one for purposely causing the death of Blum, and the other for causing it by negligence. The statute (section 6134) gives the right of action against one who (in its language), 'by wrongful act, neglect or default,' causes the death of another, etc. The transaction or occurrence resulting in the death may consist of a number of co-operating acts and omissions, some of which may be willful or intentional, and others merely failures to observe the necessary care; and a plaintiff cannot be required to arrange the facts into these different classes, and plead each as a separate cause of action.
Good pleading requires that he shall state as one cause of action all of the material facts of such wrongful act, neglect, and default, whether they were willful, or negligent only, or...
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