Davis v. Chrisp

• Decision Date: 11 June 1923
• Docket Number: 32
• Parties: DAVIS v. CHRISP
• Court: Arkansas Supreme Court

252 S.W. 606

159 Ark. 335

DAVIS v. CHRISP

No. 32

Supreme Court of Arkansas

June 11, 1923

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause dismissed.

Thos B. Pryor and Ponder & Gibson, for appellant.

The course of action was barred by the 2 years statute of limitations. Rice v. Dixon, 161 P. 722; 173 P. 196. The time fixed for commencement of the action created or permitted by statute is a condition of liability and not a statute of limitation, and action must be commenced within the time allowed. 8 A. L. R. 141, and notes; 2 Roberts' Federal Liability of Carriers, 1210. Filing of amended complaint is to be considered as the commencement of the suit against new defendants. 17 Ark. 663; 74 Ark. 526; 97 Ark. 19; 96 Ark. 388; 80 Ark. 245; 64 Ark 348; 59 Ark. 441; 6 Am. & Eng. Enc. of Law, 875; 51 L. R. A. (N. S.) 721; 67 Ill.App 114; 8 A. L. R. 1386; 241 U.S. 241. The original complaint was against the Missouri Pacific Railway Company, and was dismissed upon demurrer sustained to it. The amended complaint was filed after two years had passed from the bringing of the suit, setting up a new cause of action and against a new defendant, and the action was barred, and the demurrer should have been sustained. 241 F. 395; Ann. Cas 1914-C 1026; 107 A. 569. Cause of action accrues under Federal Employers' Liability Act within 2 years from date of death of deceased, and a personal representative appointed more than 2 years after such date cannot maintain an action. 16 A. L. R. 470; 17 R. C. L. 824. A new party defendant brought in by amendment, after the statute of limitation has run, is entitled to plead statute bar. 3 L. R. A. 324; 78 Ala. 508; 53 Ga. 102; 78 N.Y. 194; 12 Am. Rep. 657; 6 Pet. 61. Complaint not amended to substitute a new and different defendant for or against when action was brought. 75 N.Y. 304; 137 Am. St. Rep. 344; 96 Am. St. Rep. 948; 13 Am. St. Rep. 805. An action for personal injury must be brought within 2 years. Petrovis v. Del. River & Ferry Co., 42 A. 955. Amendment introducing a new or different cause of action does not relate back to the beginning of the action so as to stop the running of the statute of limitations. 86 N.E. 670; 118 S.W. 663; 112 N.W. 754; 120 S.W. 494; 99 P. 298. Where cause of action set forth in amended pleading is new, different and distinct from that originally set up, it is equivalent to bringing a new action to the time it is filed. 58 So. 186; 92 F. 820; 104 N.E. 186; 96 S.E. 640; 199 P. 861, is especially applicable here. Railroad company not liable after return of its road for injuries inflicted while railroad was under Federal control. 19 A. L. R. 675. Instruction No. 1 should have been given and a verdict directed for appellant. Requested instructions 2, 3, 4, and 8 clearly state the law applicable, and should have been given. The demurrer to the amended complaint should have been sustained and the complaint dismissed. 94 Ark. 277. The Federal Employers' Liability Act creates a cause of action which must be brought within the 2 years limitation. 204 F. 970; 87 Ark. 65; 108 Ark. 219; 227 U.S. 296. Appellee assumed the risk, and cannot recover. 1 Roberts, Federal Liability of Carriers, 978; 233 U.S. 492; 241 U.S. 229; 245 U.S. 461; 241 U.S. 470; 241 U.S. 462; 236 U.S. 668; 241 U.S. 310; see also 191 U.S. 64; 220 U.S. 590; 228 U.S. 319; 236 F. 1; 122 U.S. 189; 109 U.S. 478; 41 U.S. S.Ct. Reporter, 162; 90 Ark. 487; 57 Ark. 503; 135 Ark. 483; 134 Ark. 491; 135 Ark. 563; 101 Ark. 537; 113 Ark. 359; 85 Ark. 460; 113 Ark. 304. The court erred in giving instruction 2 over appellant's specific objection. 34 U. S. S.Ct. 229; 33 U. S. S.Ct. 465; 24 U. S. S.Ct. 24.

Brundidge & Neelly, for appellant.

This suit was brought under the Federal Employers' Liability Act within two years after the injury occurred against Mo. P. Ry. Co., under authority of Mo. P. Ry. v. Ault, 140 Ark. 572. Later the U. S. Supreme Court held that such action must be brought against the agent of the government, the road being under Federal control, and at the first term of the circuit court thereafter an amendment to the complaint was made substituting the Director General as defendant. No new case of action was alleged, and the amendment was properly made. C. & M. Digest, § 1239. Roberts' Injuries to Interstate Employees, § 9; 101 F. 171; 137 F. 740; 226 U.S. 570; 193 F. 189; 145 U.S. 598; 104 Ark. 286; 96 Ark. 388, cited for appellant, is not an authority in support of its contention, but rather supports appellee's position. Also Little Rock Traction & Electric Co. v. Miller, 80 Ark. 248; 108 S.E. 273. No assumption of risk by appellee. 129 Ark. 95. Instruction No. 2 was not erroneous. 1 Roberts, Injuries to Interstate Employees, 193.

OPINION

MCCULLOCH, C. J.

Plaintiff, O. H. Chrisp, was formerly employed by the Missouri Pacific Railroad Company as a brakeman, and, when the railroad passed into the hands of the United States Government for operation under the act of Congress providing for government control of railroads during the period of the war (act of Congress August 29, 1916), he continued in the employment of the government on that railroad. On January 17, 1917, while plaintiff was engaged in said service as a freight brakeman on a run between Memphis, Tennessee, and Bald Knob, Arkansas, he received serious personal injuries, which resulted in the loss of one of his legs, and the injuries were caused, according to the allegations of the complaint and as shown by proof in this case, by the negligence of defendant's employees in the operation of the railroad.

This action was originally instituted by plaintiff on January 14, 1921, against the Missouri Pacific Railroad Company. The railroad company demurred to the complaint on the ground that it was shown on the face of the complaint that, at the time of the alleged injury, the railroad property of the company and its operation were under government control, under the provisions of the Federal Control Act. The court sustained the demurrer on January 18, 1921, and on the same day the court made an order, on petition of the plaintiff, directing that James C. Davis, as agent of the government, be made party defendant and that a summons be served on him. Nothing further seems to have been done under that order, so far as this record shows, until August 23, 1921, when the plaintiff filed an amended complaint against James C. Davis, as such agent, alleging the same facts with respect to the injury and the cause thereof as in the original complaint, and alleging that the railroad was under government control. Summons was thereafter duly served on Davis, as agent, and on January 30, 1922, he appeared by counsel and demurred to the amended complaint on the ground that the action against said defendant Davis had not been instituted within two years after the happening of the alleged injury. The court overruled the demurrer, and the defendant then filed his answer, reserving the objections raised on the demurrer, and denying the allegations of the amended complaint with respect to negligence and the cause and extent of plaintiff's injury. The answer also contained a plea that the alleged injury of plaintiff occurred while he was engaged in interstate commerce for his employer and was therefore governed by the Federal Employers' Liability Act, and that the action was not instituted within two years after such injury occurred. There was a trial of the issues before a jury, which resulted in a judgment in favor of plaintiff for the recovery of a large sum as damages.

It is undisputed, both in the pleadings and the proof, that plaintiff's injury occurred on January 17, 1917, while he was engaged in the service of defendant, which constituted interstate commerce.

The first and principal contention of counsel for defendant as grounds for reversal is that the trial court had no authority, under our statute, to allow an amendment to the complaint substituting as defendant a new party, against whom there was alleged to be a cause of action, in the place of an original defendant, against whom there was no cause of action; that this was tantamount to the commencement of a new action after the expiration of the time allowed by the Federal statute for bringing such action. It is the contention of counsel for plaintiff that the substitution of a new party was permissible as an amendment to the complaint stating the same cause of action as in the original complaint, and that the substitution related back to the commencement of the action against the railroad company.

The Federal Employers' Liability Act (sec. 6) provides that no action may be maintained under the statute unless commenced within two years from the day the cause of action accrued. U.S. Comp. Stat., § 8662. The rule seems to be established by all of the authorities on the subject that, where a statute creates a right of action unknown at common law and also specifies the time within which the action may be commenced, it operates as a condition of liability thus created, and not merely as a period of limitation. Anthony v. Railway Co., 108 Ark. 219; Partee v. Railroad Co., 204 F. 970; Rodman v. Railway Co., 65 Kan. 645; Kerley v. Hoelham, 8 A. L. R. (Okla.) 141; Porter v. St. Louis- San Francisco Ry. Co., 51 L.R.A. 721.

Counsel for plaintiff cite cases--especially the decision of the Supreme Judicial Court of Massachusetts in Genga v New York, N. H. & H. Ry. Co., 243 Mass. 101, 137 N.E. 637--which support their contention that, under statutes similar to ours on the subject of amendments, a new party defendant may be substituted after the expiration of the period of limitation so as to relate back to the commencement of the original action and to prevent the bar of the...