La Floridienne, J. Buttgenbach & Co., Societe Anonyme v. Atlantic Coast Line R. Co.

• Decision Date: 15 March 1912
• Citation: 58 So. 186,63 Fla. 213
• Parties: LA FLORIDIENNE, J. BUTTGENBACH & CO., SOCI'T' ANONYME v. ATLANTIC COAST LINE R. CO.
• Court: Florida Supreme Court

58 So. 186

63 Fla. 213

LA FLORIDIENNE, J. BUTTGENBACH & CO., SOCI'T' ANONYME v. ATLANTIC COAST LINE R. CO.

Florida Supreme Court

March 15, 1912

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by the La Floridienne, J. Buttgenbach & Co., Société Anonyme against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a cause of action set forth in an amended pleading is new different, and distinct from that originally set up, the new pleading is equivalent to the bringing of a new action, and the statute of limitations runs against the new cause of action to the time it is introduced into the pleading.

The statute and rules allowing amendments do not give to such amendments the benefit of the legal fiction of relation back to the beginning of the action, so as to deprive a defendant of a right to the bar of a statute of limitations.

If an amendment of a complaint introduces new matter or a new claim as to which the statute of limitations has perfected a bar the bar cannot be avoided by the legal fiction of relation by referring the amendment to the commencement of the suit.

Where a common-law right of action is without leave of court substituted for a wholly different statutory right of action after the common-law right of action is barred by the statute of limitations, an order of the court striking the amendment will not be reversed.

COUNSEL Bisbee & Bedell, of Jacksonville, for plaintiff in error.

R. A. Burford, of Ocala, for defendant in error.

OPINION

WHITFIELD C.J.

An action authorized by section 2911 of the General Statutes of 1906 was begun in August, 1907, to recover freight charges collected by the defendant railroad company during the years 1904, 1905, and 1906 in excess of the rates fixed by the railroad commissioners together with expenses and attorney's fees as allowed by the statute. The declaration was amended restating the statutory cause of action, and among the pleas to the declaration as amended was the following:

'(2) And for a second and further plea this defendant says that the alleged cause and causes of action set forth in said amended declaration did not accrue within one year prior to the commencement of the plaintiff's said suit, and that prior to the 3d day of June, A. D. 1907, plaintiff's right to prosecute and maintain any suit to enforce the alleged demands set forth in plaintiff's amended declaration had fully ceased and terminated, and this the defendant is ready to verify.'

On December 5, 1910, the plaintiff, without leave of court, filed an amended declaration substituting for the statutory cause of action a common-law count, as follows:

'Comes now the plaintiff, by Bisbee & Bedell, its attorneys, and, confessing that the amended declaration in the above-entitled action states no cause of action against the second plea of the defendant to the said declaration, to which plea a demurrer is pending, and, by way of an amended declaration, says that before and at the time this action was brought the said defendant was indebted to the plaintiff in the sum of $50,000 for so much money had and received by the defendant for the use of the plaintiff. And plaintiff claims damages to the amount of $50,000.

'Bisbee & Bedell, Plaintiff's Attorneys.

'Bill of Particulars to Common Count.

'Defendant carried, as a common carrier, for the plaintiff in the year A. D. 1904, from interior points in Florida, to wit, Croom, Dunnellon, Floral City, Chatmar, and Hernando, to Port Tampa, Fla., phosphate and phosphate rock to the amount of 35,532 tons, and charged and plaintiff paid for such carriage $6,500 in excess of lawful and reasonable charges for such carriage.

'And defendant carried for the plaintiff as a common carrier in the year A. D. 1905 from said interior points in Florida to Port Tampa, Fla., phosphate and phosphate rock to the amount of 20,764.67 tons, and defendant charged for such carriage and plaintiff paid therefor $2,500 in excess of lawful and reasonable charges for such carriage.

'And defendant carried for plaintiff as a common carrier in the year A. D. 1906 from said interior points in Florida to Port Tampa, Fla., phosphate and phosphate rock to the amount of 17,867.89 tons, and defendant charged and plaintiff paid for such carriage $1,000 in excess of lawful and reasonable charges for such carriage.

'And defendant as common carrier, in the year A. D. 1906, carried for the plaintiff phosphate and phosphate rock from Croom to Chatmar, Fla., to the amount of 13,017 tons, and charged for such carriage and plaintiff paid therefor $700 in excess of lawful and reasonable charges for such carriage.

'And defendant as a common carrier in the year A. D. 1906 carried for the plaintiff phosphate and phosphate rock from Hernando to Chatmar to the amount of 1,704.45 tons, and defendant charged and plaintiff paid for such carriage $1,000 in excess of the lawful and reasonable charges for such carriage.

'And during the years A. D. 1904, 1905, and 1906 the defendant as a common carrier carried for the plaintiff from the said interior points and places in Florida to Port Inglis, Fla., phosphate and phosphate rock to the amount of 40,000 tons, and the defendant charged and plaintiff paid for such carriage $30,000 in excess of the lawful and reasonable charges for such carriage.

'Bisbee & Bedell, Attys. for Plaintiff.'

A motion to strike the amended declaration and to dismiss the cause was filed January 10, 1911. On February 16, 1911, by leave of court, the following amendment was filed:

'Comes now the plaintiff by Bisbee & Bedell, its attorneys, and, by leave of court first had and obtained, amends the common count in said action and the bill of particulars filed thereto by adding after the word 'carriage' at the end of each of the six paragraphs of said bill of particulars the following words, to wit: 'By virtue of and according to the commission rate fixed and determined by the railroad commissioners in the state of Florida for the transportation of phosphate prior to the said transportation and every part thereof. And the plaintiff sues to recover the said excess mentioned and stated in said bill of particulars'--and hereby makes the bill of particulars a part of each count.'

Subsequently the court struck the amended declaration containing the...