Daniel v. City of Tucson

• Decision Date: 23 May 1938
• Docket Number: Civil 3976
• Citation: Daniel v. City of Tucson, 52 Ariz. 142, 79 P.2d 516 (Ariz. 1938)
• Parties: SOCORRO DANIEL, Administratrix of the Estate of MARIA V. DE CRUZ, Deceased, Appellant, v. THE CITY OF TUCSON, a Municipal Corporation of the County of Pima, State of Arizona, Appellee
• Court: Arizona Supreme Court

79 P.2d 516

52 Ariz. 142

SOCORRO DANIEL, Administratrix of the Estate of MARIA V. DE CRUZ, Deceased, Appellant, v. THE CITY OF TUCSON, a Municipal Corporation of the County of Pima, State of Arizona, Appellee

Civil No. 3976

Supreme Court of Arizona

May 23, 1938

APPEAL from a judgment of the Superior Court of the County of Pima.Wm. G. Hall, Judge.Judgment reversed and cause remanded with directions.

Mr Harry O. Juliani and Mr. Joseph H. Shifman, for appellant.

Mr. B G. Thompson, City Attorney, and Mr. Arthur Henderson, for Appellee.

OPINION

ROSS, J.

On August 20, 1935, Maria V. de Cruz filed a complaint against the City of Tucson alleging that the city had constructed and was maintaining a system of drains and culverts, which together with accumulated debris, on August 21, 1933, caused the natural flow of the waters in the vicinity of plaintiff's property to be changed so as to throw quantities thereof onto her property, to her damage in the sum of $3,000.The damaged property was described as follows: "Lot 6 of Block 2 of Elysian GroveSubdivision of part of Lot 6 in Block 243 of City of Tucson...."Thereafter, on February 24, 1936, plaintiff filed an amended complaint in which she alleged that the damaged property was lots six "and seven" of such block and subdivision, but did not otherwise change the substance of the pleading.

The city attorney of Tucson filed a special demurrer to the amended complaint upon the ground that it appears upon the face of said amended complaint that the cause of action for damages to lot seven accrued more than two years prior to its institution and is therefore barred by the provisions of subdivision 2 of section 2059, Revised Code of 1928.He set up the same facts as a bar.The demurrer and plea in bar were sustained and the plaintiff electing to stand on her complaint the court ordered "that the plaintiff recover nothing from the cause of action in damages on said Lot Seven (7)" and dismissed "the said cause of action."

The appeal is prosecuted by Socorro Daniel as administratrix of the plaintiff's estate, the plaintiff having died in the meantime, and is from the court's ruling on the demurrer and the judgment of dismissal.

It seems too clear for discussion that the amended complaint did not state a new or different cause of action but only a new item of damages omitted from the original complaint.The amended complaint alleges identically the same negligence or wrongful act as the original complaint.In other words, if lot six suffered any damage, the same act of defendant damaged lot seven.Both lots where damaged at the same time and by the same act and the damage to the two lots, committed at the same time and by the same act, is what the plaintiff seeks to recover in the amended complaint, fixed at $3,000 in both the original and the amended complaint.

It is said in 1 American Jurisprudence, section 111:

"Generally speaking, a single tort -- a single wrongful or negligent act -- can be the basis of but a single cause of action ex delicto.Such a cause of action cannot be divided into distinct demands and made the subject of separate suits.Thus, a cause of action for deceit may not be split.And a single act of trespass on real property can give rise to only a single cause of action."

It is necessary that the injured real property be in one compact body.It may consist of several pieces of land not contiguous if in common ownership,

"as where fire from a locomotive causes injury to a certain piece of land belonging to one person and then spreads over land of a second person to another piece of land belonging to the first person some distance away from the former piece."1 R.C.L. 346, § 26;Knowlton v. New York & N.E.R. Co.,147 Mass. 606, 18 N.E. 580, 1 L.R.A. 625 and note.The single indivisible act charged against defendant constitutes but a single wrong or trespass and, if plaintiff had proceeded to trial and judgment on the allegations of the original complaint, she could not thereafter have prosecuted an action for damages to lot seven.The law does permit one to split his cause of action and harass an adversary with more than one action for one wrong.Fields v. Philadelphia Rapid Transit Co.,273 Pa. 282, 117 A. 59.

The question then is, May a partyplaintiff whose real property has been injured by a single tortious act amend his complaint after the statute of limitations has run to include a piece of real property injured by the same act but omitted from the original complaint, so that the amendment relates back to the commencement of the action?As an aid in the further consideration of the question, we quote what this court said in Motes v. Gila Valley, Globe & Northern Ry. Co.,8 Ariz. 50, 54, 68 P. 532, 533, as follows:

" The general rule is that an amendment relates back to the time of the filing of the original petition, so that te running of the statute of limitations against the amendment is arrested thereby.But this rule, from its very reason, applies only to an amendment which does not create a new cause of action.The principle is that, as the running of the statute is interrupted by the suit and summons, so far as the cause of action then propounded is concerned it interrupts as to all matters subsequently alleged by way of amendment which are a part thereof."

All the amendment does is to aid plaintiff to have the court or jury pass on his whole damages and not a part thereof.Any defense to the merits of the original complaint is a good defense to the amended complaint.The evidence to establish defendant's liability for damages alleged in the original complaint would also establish the damages under the amended complaint.The amendment is only an amplification of the original pleading.It does not state a new or different cause of action.It is said in 17 Ruling Case Law 815, section 180:

" An amendment to a declaration, which sets up no new cause of action, and makes no new demand, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point."

This statement is fully supported by the many cases cited thereunder.

The statutes, in very liberal terms, grant he right to amend pleadings, section 3740, and in the same connection direct the court to disregard error or defect in the pleadings which shall not affect the substantial rights of the parties, ...