Johnson v. American Smelting And Refining Co.

• Decision Date: 07 May 1908
• Docket Number: 14,967
• Citation: 116 N.W. 517,80 Neb. 255
• Parties: ELLSWORTH JOHNSON, APPELLANT, v. AMERICAN SMELTING AND REFINING COMPANY, APPELLEE
• Court: Nebraska Supreme Court

116 N.W. 517

80 Neb. 255

ELLSWORTH JOHNSON, APPELLANT, v. AMERICAN SMELTING AND REFINING COMPANY, APPELLEE

NO. 14,967

Supreme Court of Nebraska

May 7, 1908

Affirmed.

EPPERSON C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C. J.

After the opinion reported ante, p. 250, was filed herein a rehearing was allowed. A history of the case may be found in the former opinion. In the original petition plaintiff pleaded an injury received by him through the negligence of a third party, the Omaha & Grant Smelting Company. He sought to charge defendant therewith by alleging that defendant succeeded to the rights, properties and liabilities of such third party. Following this allegation the plaintiff specifically set forth the nature of the negligent acts complained of on the part of the Omaha & Grant Smelting Company and on the part of their foreman, Wolfe. He alleges that said Wolfe is also the foreman of the defendant herein but definitely sets forth that it was while the plaintiff was employed by defendant's predecessor that he received the injury complained of. After making these specific allegations, the plaintiff alleged "that said injury," meaning necessarily the injury inflicted through the carelessness of the Omaha & Grant Smelting Company, "was the result of the carelessness and negligence of defendant and their foreman." A demurrer was sustained to this petition, to which the plaintiff apparently consented. Whereupon he presented the amended petition, in which he alleged that the same injury was caused by the negligence of the defendant and its foreman. The question arises whether the amended petition, which was stricken from the files, stated a new and different cause of action, or was it a proper substitute for the original petition. The plaintiff attaches significance to the phrase appearing in the original petition, "that said injury was the result of the carelessness and negligence of the defendant and their foreman," claiming that it charges defendant with negligence, and which would permit of an amendment more specifically alleging such cause. It is true that a general averment that the defendant was negligent, without setting forth the negligent acts or omissions, is good as against demurrer. But was the allegation referred to a general allegation of negligence on the part of the defendant? A pleading must be taken in its entirety to ascertain the cause of action or defense relied on by the pleader, and, as the original petition specifically set forth the negligence of a third party as the cause of his injury, the phrase now relied on by the plaintiff may not be given the weight of a general allegation of negligence. The phrase is contradictory. "Said injury" means the injury previously described in the petition. That was the injury inflicted by the Omaha & Grant Smelting Company. It could not have been caused by the negligence of the defendant. The allegation was but an illogical inference of the pleader.

If recovery may be had under the original petition, it is because defendant succeeded to all the liabilities of the Omaha & Grant Smelting Company. More than four years after the alleged injury, the plaintiff filed his amended petition, charging the defendant with negligence. He set forth the same injury as that alleged in the original petition, except that he now alleges that it was inflicted by defendant instead of its predecessor. If this is a new and different cause of action it is barred by the statute of limitations. In our former opinion we considered that the amended petition was a mere amplification of the original cause of action. We there said: "The cause of action for which plaintiff sought a recovery was for the injury sustained by him while replacing a broken jacket upon a hot furnace on the 1st day of July, 1899, and that through the negligence of the foreman, Wolfe, he was injured and sustained damages. The same injury, happening at the same time, in the same place, and under the same circumstances, is the basis of his action in each instance. It was not a new cause of action that he set up in the amended petition." Further consideration has convinced us that we were in error in holding that it was not a new cause of action that he set up in his amended petition. It is the same injury, but a different liability is alleged against the defendant. It now appears that the failure to observe the distinction resulted in the erroneous conclusion reached at the former hearing. The injury, it is true, is the subject of the action. Had no injury been suffered, there would have been no cause of action. The cause of action in any case embraces, not only the injury which the complaining party has received, but it includes more. All the facts which, taken together, are necessary to fix the responsibility are parts of the cause of action.

In Buerstetta v. Tecumseh Nat. Bank, 57 Neb. 504, 77 N.W. 1094, it appears that the original petition filed therein alleged that the plaintiff had deposited with the third party, a bank, certain money represented by certificates of deposit, which remained unpaid. She sought to hold defendant by alleging that it succeeded to the business of the third party, and its liability to plaintiff. Later plaintiff filed an amended petition containing additional allegations charging defendant with fraud. It was held that the additional facts pleaded in the amended petition constituted a separate and distinct cause of action independent from that stated in the original petition, and that the statute of limitations against the cause of action pleaded in the amendment ran until the filing of such amended petition. See, also, cases reviewed in that opinion. In Box v. Chicago, R. I. & P. R. Co., 107 Iowa 660, 78 N.W. 694, it was held: "In an action to recover damages for negligence, 'the cause of action,' as used in pleading, is not the injury wrongfully inflicted through defendant's negligence, but is the fact or facts that justify the action, or show the right to maintain it." The original petition in that case charged defendant with negligence in using different systems of bumpers in the coupling of its cars. The amended petition, which was held by the court to have been improperly allowed, charged negligence to the defendant, in that the injury was caused by its having bumpers loose and out of repair. The conclusion of the court was that the amendment charged a different cause of action. It changed the nature of the action pleaded in the original petition, and should not have been allowed. In the opinion we find the following "The cause of action is the fact or the facts that 'justify it, or show the right to maintain it.' Hence, when a material fact, necessary to a recovery, is omitted from a petition, we say it does not state a cause of action." In the opinion the court quoted from Rodgers v. Mutual E. A. Ass'n, 17 S.C. 406, as follows: "What is a cause of action? We must keep in view the difference between the subject of action and the cause of action. The subject of action is what was formerly understood as the subject matter of the action. * * * The cause of action is the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant, on the other, and these appear by the facts of each separate case." In Union P. R. Co. v. Wyler, 158 U.S. 285, 39 L.Ed. 983, 15 S.Ct. 877, it was held that the amended petition, alleging that the plaintiff's fellow servant was negligent and caused the injury, was a departure from the original allegation of the negligence on the part of the defendant in the employment of an incompetent person who caused the injury. In Van Patten v. Waugh, 122 Iowa 302, 98 N.W. 119, it was held that an amendment, alleging that the claimant was surety upon certain notes, which he originally declared upon as owner, and which by reason of his liability as surety he was required to pay, was a different cause of action, and could not be sustained. In the...