Davis v. Chrisp, (No. 32.)

• Court: Supreme Court of Arkansas
• Writing for the Court: McCulloch
• Citation: 252 S.W. 606
• Parties: DAVIS, Agent, v. CHRISP.
• Decision Date: 11 June 1923
• Docket Number: (No. 32.)

252 S.W. 606 DAVIS, Agent,
v.
CHRISP. (No. 32.) Supreme Court of Arkansas. June 11, 1923.

Page 607

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

Action by O. H. Chrisp against James C. Davis, as Agent. Judgment for plaintiff, and defendant appeals. Reversed with directions to dismiss.

Thos. B. Pryor, of Ft. Smith, and Ponder & Gibson, of Walnut Ridge, for appellant.

Brundidge & Neelly, of Searcy, for appellee.

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 Cong. Aug. 29, 1916 [39 Stat. 619]), 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, Tenn., and Bald Knob, Ark., 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 was 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 its answer reserving its objection 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 (U. S. Comp. St. §§ 8657-8665), 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 (§ 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. St. § 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, 157 S. W. 394; Partee v....