Cunningham v. Patterson

• Decision Date: 10 May 1913
• Docket Number: 18,656
• Citation: 89 Kan. 684,132 P. 198
• Parties: LINNIE M. CUNNINGHAM, Appellee, v. JOHN T. PATTERSON et al., Partners, etc., Appellants
• Court: Kansas Supreme Court

132 P. 198

89 Kan. 684

LINNIE M. CUNNINGHAM, Appellee, v. JOHN T. PATTERSON et al., Partners, etc., Appellants

No. 18,656

Supreme Court of Kansas

May 10, 1913

Decided January, 1913.

Appeal from Wyandotte district court, division No. 3.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PLEADINGS--Death in Another State--Statute Not Pleaded--Amendment Allowed--No New Cause of Action. A petition which alleges the death of the plaintiff's husband to have been caused in another state by the negligence of the defendant, but fails to add that a statute of that state authorizes a recovery under the facts pleaded, may be amended by setting out the existence of such a statute, even after the expiration of the time within which an action thereunder is allowed to be brought.

Gardiner Lathrop, O. W. Pratt, both of Kansas City, Mo., and C Angevine, of Kansas City, for the appellants.

James F. Getty, of Kansas City, for the appellee.

OPINION

MASON, J.:

On June 5, 1911, Linnie M. Cunningham brought an action in this state against the Patterson-Middleton Construction Company, a partnership, to recover damages on account of the death of her husband, alleged to have been occasioned in Missouri, on May 2, 1911, by the negligence of the defendants. The petition contained no allegation with respect to the statutes of Missouri. A general demurrer thereto was sustained on January 4, 1913, the plaintiff confessing it and obtaining leave to amend. On January 6, 1913, an amended petition was filed setting out in full the statutes of Missouri which authorize a recovery under the circumstances stated. An answer pleaded as a separate defense an additional section of the Missouri statute, requiring actions brought under it to be begun within one year from the accrual of the right. A demurrer to this defense was overruled, and the defendants appeal from this ruling.

The question presented is: Where an action is brought in this state for damages on account of a death occasioned in Missouri by the defendant's negligence, and the original petition omits all reference to the Missouri statute, may the plaintiff, after the expiration of the time within which such statute requires an action thereon to be begun, amend by pleading the statute, and recover upon the amended petition?

In this state an action is deemed not to be commenced, for the purpose of interrupting the running of the statute of limitations, until a petition is filed which states a cause of action. A petition which is subject to a general demurrer is regarded, in this respect, as being no petition at all. ( Railway Co. v. Bagley, 65 Kan. 188, 69 P. 189, 3 L. R. A., n. s., 259; Powers v. Lumber Co., 75 Kan. 687, 90 P. 254.) This rule is rejected in some jurisdictions, including two in which it had formerly prevailed. ( Ellison v. Georgia Railroad Co., 87 Ga. 691, 13 S.E. 809; Boudreaux v. Tucson Gas etc. Co., 13 Ariz. 361, 114 P. 547, 33 L. R. A., n. s., 196.) It can not apply in the present case. The original petition did state a cause of action. In the courts of Kansas it is always presumed that the statute law of every other state is the same as that of this commonwealth, until the contrary has been pleaded and proved. (K. P. Rly. Co. v. Cutter, 16 Kan. 568; Bershears v. Nelson, 80 Kan. 194, 101 P. 1011.) In McCarthy, Adm'r, v. Railroad Co., 18 Kan. 46, 26 Am. Rep. 742, a petition declaring upon a death caused in Missouri, without pleading the statute of that state, was held demurrable, notwithstanding this presumption, but the decision was specifically based upon the fact that the action was brought by an administrator, the court saying: "We can not presume that the laws of Missouri give an administrator of Kansas power to collect moneys under its laws, to administer trusts imposed by its authority, and to distribute funds among the proper parties to whom the same belongs by the statutes of that state." (p. 51.) Incidentally the court also stated that under the statute of Missouri no action was maintainable by the plaintiff. If in the present case the defendants had answered only by a general denial, and the plaintiff had proved the facts alleged in the petition, she would have been entitled to recover upon the presumption that the Missouri statute is the same as our own. Therefore her petition was not demurrable. The fact that the court sustained a demurrer to it, upon confession by the plaintiff, is not important. The confession was in effect no more than an admission that the petition needed to be amended. By confessing the demurrer she placed herself in the same position as if she had amended the petition after a demurrer to it had been sustained. The ruling could not be appealed from. (Rosa v. M. K. & T. Rly. Co., 18 Kan. 124.) But it did not constitute a final adjudication, binding upon the court. (31 Cyc. 350.)

The original petition was of precisely the same legal effect as though it had professed to set out the Missouri statute in full, but in undertaking to quote its language had in fact quoted that of the Kansas statute. Such a petition would have stated a cause of action, but no recovery could have been had upon it, if its truth were sufficiently challenged, because the plaintiff would necessarily have failed in her proof. The question then resolves itself into this: Where a petition states a cause of action only in virtue of an incorrect statement of the contents of the statute of another state, may the plaintiff, after the expiration of the period within which actions based thereon are allowed to be begun, amend by substituting a correct statement thereof? It is the settled law of this jurisdiction that after the expiration of the limitation period the plaintiff may not effectively so amend a petition as to state a new cause of action. He may not, under such circumstances, convert an action based upon the common law into one based upon a statute. (A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 P. 1093.) Nor may he revive a barred claim for damages for a tort by incorporating it in a petition filed in due time, declaring upon another tort of the same character. (Railroad Co. v. Sweet, 78 Kan. 243, 96 P. 657.) It will not do, however, to say that after the time has expired within which an original action could be begun, he may not make a material change in his allegation of facts, for that is the only possible object of any amendment in the statement of a cause of action that is worth making at all. In the present case we do not think the amendment changed the identity of the cause of action. It merely substituted a correct for an erroneous statement of the facts relied upon for a recovery. Amendments have been upheld in this court, under similar circumstances, substituting a different plaintiff for one in whose name an action was brought through mistake (Service v. Bank, 62 Kan. 857, 62 P. 670); adding an allegation of the breach of an express warranty to a petition asking damages because an article purchased proved unfit for the purpose for which it was intended (Culp v. Steere, 47 Kan. 746, 28 P. 987); charging the conversion of the proceeds of personal property instead of the conversion of the property itself (Bank v. Layfeth, 63 Kan. 17, ...