Denver & R.G.R. Co. v. Stinemeyer
| Decision Date | 03 May 1915 |
| Docket Number | 8039. |
| Parties | DENVER & R. G. R. CO. v. STINEMEYER. |
| Court | Colorado Supreme Court |
Error to District Court, Fremont County; Charles A. Wilkins, Judge.
Action by S.C. Stinemeyer against the Denver & Rio Grande Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
E. N. Clark, of Denver, Charles E. Waldo and James A. Stump, both of Canon City, and William B. Waldo and A. J Cunningham, both of Billings, Mont., for plaintiff in error.
A. L Jeffrey and Edwin H. Stinemeyer, both of Canon City, for defendant in error.
The defendant in error recovered judgment for damages to his property consisting of real estate in Canon City, with a residence, barn, and other improvements thereon. These damages are alleged to have been caused by the construction and operation, by the plaintiff in error, of a railroad switch, or side track, which it is alleged runs across and in and upon that portion of a public alley at the rear of the plaintiff's lots and adjacent thereto. Trial was to the court.
It is claimed that the second amended complaint states a new cause of action not proper by way of amendment, and that the court erred in refusing to strike it. The original complaint sought to include all items of damages in one count. The defendant interposed a motion, which was sustained, to require the plaintiff to state separately his causes of action. The first amended complaint attempted to put them in two counts. The defendant filed its motion thereto, which among other things, requested that the first cause of action therein be stricken for the reason that it arises exclusively out of facts which are alleged to have occurred after the commencement of the action and is the introduction of a new cause of action by way of an amendment. This portion of the motion was sustained, and the plaintiff given leave to amend again. The second amended complaint comprises four causes of action. As no judgment was rendered upon the fourth, we need give it no attention. The first is for damages for the construction of this road in the alley, which, it alleged, prevents the use of said alley for the purposes for which it was dedicated and laid out, and deprives the plaintiff of any and all means of access to and from his premises by the use of the alley. The second is for the depreciation in the value of the premises occasioned by the construction of said track and the operation of the cars thereon, etc. The third is for damages to the plaintiff's barn on said lots, which it is alleged was knocked apart, partly torn down, and otherwise damaged by the defendant company in the construction and operation of said track. These matters were all attempted to be included in the original complaint, upon which summons was issued by which this defendant was brought into court, and whether good or bad, as therein attempted to be pleaded, their statement in detail in the second amended complaint did not change the cause of action from the one first instituted. Perfecting the statement of the original cause of action by the addition of essential averments is not pleading a new cause of action. California Ins. Co. v. Gracey, 15 Colo. 70, 24 P. 577, 22 Am.St.Rep. 376; Tribune Pub. Co. v. Hamill, 2 Colo.App. 237, 30 P. 137.
It is urged, however, that the plaintiff, in his first amended complaint, attempted to set up a new cause of action and did not attempt to include certain causes of action attempted to be set forth in his first complaint, for which reason he must be assumed to have abandoned them, and therefore, although his first amended complaint was held bad, he could not again assert them in a second amended complaint. Numerous authorities are cited which it is claimed disclose that, when an amended complaint is filed, it necessarily takes the place of all prior complaints and becomes the sole statement of the cause of action. We have no contention with these authorities, but when, upon motion of the defendant, an amended complaint is stricken, and when, as in this case, it seeks to recover the same items of damages, although including other acts on account of which it is alleged the plaintiff is entitled to them, we cannot agree that because the plaintiff has not included in it all the averments in his original complaint, but does include them in a second amended complaint, he must be held to have abandoned his original cause of action, when there is no contention that there is any cause of action set forth in the second amended complaint, which was not attempted to be included in the first complaint. In order to determine whether a new cause of action has been stated, all former pleadings may be considered for the purposes of comparison. Anthony v. Slayden, 27 Colo. 144, 60 P. 826.
It is claimed the court erred in permitting the plaintiff to amend his second cause of action during the closing argument for the defendant in error. This count was for the depreciation in the value of the plaintiff's property, caused by the construction of said track and the operation of the cars thereon, etc. As this pleading then stood, among other things, it alleged the construction of this side track, giving its general location and continued use thereafter. It also alleged:
'That said side track was so constructed as to extend across said alley where the same adjoins the plaintiff's said premises * * * and along and upon said alley to the westerly side of said block 5.'
But it failed to allege that the land at the rear of said lot adjoining it was dedicated to the public for an alley, etc., had thus been used by the plaintiff, and that it was the only means, save and except the street in front of the premises, whereby ingress and egress could be had to said premises. It was these allegations which the court allowed to be added during the argument. We find no error in...
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