Johnson v. Am. Smelting & Ref. Co.
| Decision Date | 05 December 1907 |
| Docket Number | No. 14,967.,14,967. |
| Citation | 114 N.W. 144,80 Neb. 250 |
| Court | Nebraska Supreme Court |
| Parties | JOHNSON v. AMERICAN SMELTING & REFINING CO. |
Original and amended petitions examined, and held, that the amended petition did not state a different cause of action from that attempted to be set up in the original petition.
A plaintiff has a right to file an amended petition setting up a good cause of action after the sustaining of a general demurrer to his original petition, notwithstanding the fact that the statute of limitations has run prior to the filing of the amended petition, provided the amended petition does not seek to recover upon a new and independent cause of action, and it is error to sustain a motion to strike such an amended petition from the files.
When an amended petition has been stricken from the files upon the ground that it states a different cause of action from that set forth in the original petition and one that is barred by the statute of limitations, the plaintiff is entitled on appeal to review the ruling of the court in striking the amended petition from the files.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Estelle, Judge.
Action by Ellsworth Johnson against the American Smelting & Refining Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Weaver & Giller, for appellant.
Crofoot & Scott, for appellee.
On the 14th day of April, 1903, the plaintiff commenced this action in the district court of Douglas county against the defendant to recover damages for a personal injury, alleged to have been sustained on the 1st day of July, 1899. To the petition filed by the plaintiff the defendant interposed a general demurrer. On the 21st day of March, 1904, an amended petition was filed, and on the day following the district court sustained the demurrer to the original petition, and granted leave to file an amended petition instanter. While it does not appear that the plaintiff consented to the sustaining of the demurrer, that inference may be drawn from the fact that he filed an amended petition on the day previous to the ruling of the court on the demurrer. Thereafter the defendant filed the following motion: “Comes now the defendant, and moves the court to strike from the files the amended petition in this cause filed, for the reason that the amended petition sets forth a new and different cause of action from that set forth in the original petition, and one that was barred by the statute of limitations at the time of the filing of said amended petition.” This motion was sustained on the 21st day of November, 1904. On the 4th day of February, 1905, plaintiff filed a second amended petition, practically identical in form with the original petition, which petition was, on motion of the defendant, stricken from the files, upon the ground that it was not an amended petition, but a copy of the original petition, to which a demurrer had been theretofore sustained by the court. Thereupon the plaintiff filed a motion, requesting leave of court to withdraw his consent to the sustaining of the demurrer to his original petition, which leave was granted by the court. Under the date of April 28, 1906, appears the following journal entry: “And now on this day come the parties hereto by their attorneys, and this cause comes on to be heard upon a demurrer of the defendant to the original petition of the plaintiff herein, and is argued and submitted to the court; and, after due consideration and being fully advised in the premises, the court does sustain said demurrer, to which the defendant duly excepts, and is by the court granted ten days to amend his original petition.” The plaintiff refused to plead further, and upon motion judgment of dismissal was entered. Plaintiff appeals, and assigns as error the order of the court in sustaining the motion to strike his first amended petition, the order of the court in sustaining the motion to strike his second amended petition, the order of the court in sustaining the demurrer to the original petition, and the order of the court in rendering judgment of dismissal.
The first question for determination is as to whether or not the court erred in sustaining the motion to strike the first amended petition. In order to determine this question, it becomes necessary to examine both the original and the first amended petitions. In the original petition the plaintiff alleged the corporate capacity of the defendant; that it was engaged in operating a smelter in Omaha; that it had succeeded “to the rights, property, and liabilities of the Omaha & Grant Smelting Company”; that the defendant is now the owner of said smelting property and running a smelter; that on or about the 1st day of July, 1899, “the predecessor of the defendant herein owned and operated” the said smelter. Then plaintiff averred that “he was employed by the predecessor of the defendant and was working for them as a common laborer on or about the 1st day of July, 1899, and that he was under the direction and control of John T. Wolfe, a foreman of said party, and a foreman of the defendant herein”; that while he was so employed for the predecessor of said defendant under said foreman, on or about the 1st day of July, 1899, “he was instructed by Wolfe to take out a broken jacket, and put on a new jacket, from a hot furnace,” etc. Then follow the allegations of his injury and the extent thereof, closing with the following: “That said injury was the result of the carelessness of the defendant and their foreman, and was without any negligence on the part of the plaintiff.” In the first amended petition it is charged that the defendant at the time of the injury owned and operated the smelter, and that the plaintiff was in its employment, and acts of primary negligence were charged to the defendant which caused the injury complained of. There is no...
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...cite the case of Johnson v. American Smelting & Refining Co., 80 Neb. 250, 114 N.W. 144. In the opinion on a rehearing in that case (p. 255) the rule contended for is stated as follows: cause of action alleged in an amended petition, although founded upon the same injury as that described i......