Ingwerson v. Chicago & A. Ry. Co.

• Decision Date: 12 July 1910
• Citation: 150 Mo. App. 374,130 S.W. 411
• Court: Missouri Court of Appeals
• Parties: INGWERSON v. CHICAGO & A. RY. CO. et al.

130 S.W. 411

150 Mo. App. 374

INGWERSON v. CHICAGO & A. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. PLEADING (§ 248)—AMENDMENT—CHANGING CAUSE OF ACTION.

The first or original petition filed in a cause is the standard by which the identity of the cause of action relied on is to be thereafter determined when successive amendments are made.

2. PLEADING (§ 248)—AMENDMENT—CHANGE OF CAUSE OF ACTION.

As long as the gist of the action remains the same in the proposed amendment to a petition though the alleged incidents are different, it is regarded the same cause of action, but the proposed amendment must not only relate to the same transaction, but must adhere as well to the contract or injury originally declared on.

3. PLEADING (§ 248)—AMENDMENT—CHANGE OF CAUSE OF ACTION—DELAY IN GOODS SHIPPED.

Where a petition for delay in shipment of cattle, sounded in tort as for breach of obligation to ship in a reasonable time, after delivery to the carrier, an amended petition which is bottomed on the false and fraudulent representations of the carrier's agent made to the shipper before delivery of the cattle to the carrier, as to the time in which they would be shipped, no sufficient allegations being made as to delay after the goods were delivered to the carrier, states a cause of action different from the original petition, and is properly stricken from the files.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Thomas B. Ingwerson against the Chicago & Alton Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

See, also, 205 Mo. 328, 103 S. W. 1143.

Tapley & Fitzgerrell, I. C. Dempsey, and T. B. McGinnis, for appellant. Scarritt, Scarritt & Jones, for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff on account of defendant's negligence in transporting a number of cattle to the Chicago market. An amended petition was stricken from the files on the theory that it substituted a new and distinct cause of action for that originally declared upon. Plaintiff, having declined to further plead, a judgment of dismissal was thereupon entered against him from which he prosecutes the appeal.

The only question for consideration is as to whether or not the amended petition so stricken from the files substituted a new and distinct cause of action for that asserted in the original pleading. The original petition avers in substance that defendant is a common carrier of live stock, and as such operates a railroad from Bowling Green, Mo., to Chicago, Ill.; that plaintiff delivered to it for transportation to the Chicago market a number of fat cattle whereby it became obligated to complete the transportation with due care and within a reasonable time; that defendant so negligently and carelessly conducted itself with respect to the shipment of cattle as to delay the transportation and thereby breach its obligation to deliver them on the Chicago market within a reasonable time after the shipment was commenced; that because of defendant's negligence and carelessness in the premises, the cattle were delivered in Chicago too late for the market on the day intended, and thus entailed a considerable loss upon plaintiff through the shrinkage of the cattle, his expenditure for feed in holding them for the market on the following day, etc. It is further averred the market on the character of cattle involved in the shipment was considerably lower on the day on which they were sold; that is, the day succeeding the one on which they should have been delivered had defendant performed its full duty in the premises and there was a loss on this account. Damages are laid in the sum of several hundred dollars and prayed for accordingly. Afterwards, two amended petitions were filed and finally a third one. The present appeal relates only to the question as to whether or not the third amended petition substitutes another cause of action for that first charged, for there can be no doubt of the general proposition that the first or original petition filed in the cause is the standard by which the identity of the cause of action relied upon is to be thereafter determined when amendments are made. Bick v. Vaughn, 120 S. W. 618; Purdy v. Pfaff, 104 Mo. App. 331, 78 S. W. 824.

The third amended petition, which was stricken from the files on defendant's motion as though it constituted a departure, after formal averments, alleges for a cause of action substantially that plaintiff shipped over defendant's railroad the same number of cattle and on the same date mentioned in the original petition to the Chicago market on which shipment he sustained a considerable loss and damage through defendant's negligence and carelessness, as hereinafter set forth. For further specifications with respect to the matter, plaintiff avers that, desiring to ship such cattle, he made inquiries of defendant's station agent at Bowling Green and sought to ascertain whether defendant's railroad was in any way obstructed between that place and Chicago and whether trains were being delayed in consequence of cold weather and snow which had recently fallen. At the time he made such inquiries, he informed defendant's agent that he had certain fat cattle which he desired to ship and sell on the market at Chicago, but would not then do so if there was any danger of delay in their transportation; that in response to such inquiries the station agent informed and assured him that defendant's railroad was running its trains on regular time and there was nothing which would hinder or prevent his cattle from being transported and delivered for the early morning market intended; that not later than 6 o'clock on the following morning in order to be certain as to the matter, plaintiff called defendant's station agent over the telephone and inquired a second time if the trains on its railroad were being delayed in any manner and was informed by the agent that they were not. It is averred that the agent said the...