Curtice v. Chi. & N. W. Ry. Co.

• Decision Date: 22 February 1916
• Citation: 156 N.W. 484,162 Wis. 421
• Court: Wisconsin Supreme Court
• Parties: CURTICE v. CHICAGO & N. W. RY. CO.

162 Wis. 421

156 N.W. 484

CURTICE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 22, 1916.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by F. E. Curtice against the Chicago & Northwestern Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded.

Barnes and Vinje, JJ., dissenting.

This action was brought to recover for personal injuries. The original complaint, omitting title, was as follows:

“First. That the defendant is a railway corporation, organized under the laws of the state of Wisconsin; that at all times herein mentioned, it owned and operated a line of railway in and through said state, and between the cities of Marinette and Green Bay, Wis.

Second. That at all times hereinafter stated, when injured, plaintiff, a resident of said city of Green Bay, was in the employ and service of defendant, as a freight conductor on one of defendant's freight trains operating between said cities; that on the 9th day of October, 1911, while running southerly and about to head in onto the siding at Little Suamico, a station on said line in Oconto county, the defendant's said freight on which plaintiff then was employed as conductor was carelessly and negligently run into by one of defendant's passenger trains, following after, before the freight had time to pull onto the siding, and plaintiff was injured as hereinafter alleged.

Third. On information and belief, plaintiff alleges that defendant's servants in charge of the said passenger train knew of its presence and that the said passenger was following close after on the same block; that said servants had been warned to that effect by a caution card or notice delivered to them at Pensaukee, a station next north of Little Suamico, providing and directing that they proceed with caution, prepared to stop within their vision, and that they might expect to find extra 116, plaintiff's said freight train, within the block; that, notwithstanding, defendant's servants in charge and control of said passenger train did not proceed with caution, and so as to be able to stop within the vision, but recklessly, carelessly, and negligently run said passenger train at a high and dangerous rate of speed, and so run it against and into the said freight at said place.

Fourth. That the defendant's servants, the train dispatcher, and others, having control of the running of said trains, while the said freight was proceeding south, carelessly and negligently suffered and caused the said passenger train to be let onto the said block with the said freight, thereby causing the said passenger to enter the block and proceed on its way southerly before the block was clear, and before the freight had left it, which made it possible and likely that such an accident might happen.

Fifth. That the said passenger train, by reason of the aforesaid negligence, ran into the said freight with great force and violence, and the plaintiff was, by the said negligence, severely and greatly injured, to wit, plaintiff's left hip and leg were severely sprained and injured; that he was confined to the hospital for some 10 days on account thereof and suffered great pain; that said injury has continued, causes the plaintiff pain, and renders him unable to do any kinds of manual labor that he could formerly do; that said injury has caused plaintiff loss and damage in expense for treatment, and in loss of time and earnings still does, and will in the future, greatly impair plaintiff's ability to earn a livelihood--all to his damage in the sum of $5,000.

Wherefore plaintiff demands judgment against the defendant for said sum and for costs.”

Among other things, the defendant set up facts showing that at the time of injury the plaintiff and defendant were engaged in interstate commerce, and that the cause of action, if any existed, was under the federal act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), not under the laws of the state of Wisconsin. Judgment was demanded by defendant abating the action.

Afterwards the plaintiff was allowed to amend his complaint by adding allegations to the effect that defendant's road runs through the state of Michigan and between the cities of Green Bay, Wis., and Menominee, Mich., and that plaintiff and defendant were, at the time of the injury alleged, engaged in interstate commerce. Defendant then amended its answer, setting up the statute of limitations. At the time of the amendment of the complaint two years from the time of the alleged injury had expired. The court below held that the original cause of action was one under the state law, and that the amendment of the complaint set up a cause of action under the federal act, and that such action was barred by the two-year statute, and sustained the defendant's demurrer and dismissed the complaint. The plaintiff appealed to this court from the judgment dismissing the complaint.

Martin, Martin & Martin and Gerald Clifford, all of Green Bay, for appellant.

Edward M. Smart, of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

The point involved upon this appeal, under the assignments of error, is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action, and that under the federal act, while on the part of the respondent it is insisted that the original complaint set up a cause of action under the state law, and that the amendment changed it from a cause of action under the state law to one under the federal act.

[1] It is obvious that but one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained the parties were engaged in interstate commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint, and the defects were cured by the amendment. But one cause of action was stated. The amendment related back to the original complaint and became a part of it; hence the statute of limitation was no defense. Missouri, K. & T. R. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134;Gainesville M. R. v. Vandiver, 141 Ga. 350, 80 S. E. 997;Bixler v. Pennsylvania R. Co. (D. C.) 201 Fed. 553;Smith v. Atlantic C. L. R. Co., 210 Fed. 761, 127 C. C. A. 311;Cincinnati, N. O. & T. P. Ry. v. Goode, 163 Ky. 60, 173 S. W. 329;Vickery v. New London N. R. Co., 87 Conn. 634, 89 Atl. 277;Shieffelin v. Whipple, 10 Wis. 81;Callahan v. Chicago & N. W. R. Co., 154 N. W. 449.

Counsel for respondent has favored us with a very able and exhaustive discussion of cases touching the question involved, and we confess that there is some lack of harmony in the decisions. We think, however, that most, if not all, of the authorities cited by counsel for respondent can be distinguished from the instant case.

We shall not attempt to discuss the numerous cases referred to by counsel for respondent except two which are particularly relied upon, namely, Union P. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and Meinshausen v. Gettelman B. Co., 133 Wis. 95, 113 N. W. 408, 13 L. R. A. (N. S.) 247, 120 Am. St. Rep. 967.

In Meinshausen v. Gettleman B. Co., supra, there were two causes of action, the amended complaint setting up a new and different cause of action from that set up in the original complaint; therefore the case is not in point.

We think a careful examination of Union P. Ry. Co. v. Wyler, supra, will show that it is clearly distinguishable from the instant case. In the Wyler Case the amendment changed, not only the cause of action, but the nature and substance of the cause of action. The whole discussion in the opinion in the Wyler Case goes upon the idea that an entirely new and different cause of action cannot be set up by way of amendment, and thus escape the plea of the statute of limitation on the ground that the new cause of action related back to the time of filing the complaint. But the facts in the Wyler Case and the reasoning in the opinion have no application to a case where there is but one cause of action which is defectively stated and the defect cured by amendment.

[2] The learned trial judge below seems to have attached importance to the fact that counsel for appellant stated that he intended to state a cause of action under the state law. We think this statement wholly immaterial. The mental operations of counsel could not create two causes of action where but one existed. The intent of the pleader might be significant or helpful in giving construction to an allegation which was ambiguous or of doubtful meaning. But there is no such question here.

There is another feature of this case which is worthy of notice. When the defendant answered the original complaint it set up the facts which were omitted in the plaintiff's defective complaint and necessary to perfect the cause of action under the federal act, and which were afterwards set up by plaintiff in the amendment complained of. The defendant was therefore in no way surprised or prejudiced by the amendment. Doubtless the case could have gone to trial on the pleadings as originally framed, and the complaint on the trial amended or treated as amended in accordance with the issues made by the pleadings as originally framed. Callahan v. Chicago & N. W. R. Co., 154 N. W. 449;Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862;Graber v. Duluth S. S. & A. R. Co., 159 Wis. 414, 150 N. W. 489;Wabash R. R. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226.

As said in Union P. R. v. Wyler, 158 U. S. at pp. 297, 298, 15 Sup. Ct. 882, ...