Lammers v. Chi. Great W. R. Co.

• Decision Date: 19 December 1919
• Docket Number: No. 32682.,32682.
• Citation: 175 N.W. 311,187 Iowa 1277
• Parties: LAMMERS v. CHICAGO GREAT WESTERN R. CO.
• Court: Iowa Supreme Court

187 Iowa 1277

175 N.W. 311

LAMMERS

v.CHICAGO GREAT WESTERN R. CO.

No. 32682.

Supreme Court of Iowa.

Dec. 19, 1919.

Appeal from District Court, Dubuque County; D. E. Maguire, Judge.

Action, under federal Employers' Liability Act, for damages. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.Carr, Carr & Evans, of Des Moines, George T. Lyon, of Dubuque, and Don Evans, of Minneapolis, Minn., for appellant.

Frantzen, Bonson & Gilloon, of Dubuque, for appellee.

STEVENS, J.

Plaintiff in his original petition, which was filed on February 23, 1911, alleged that he was, during the month of April, 1910, employed by the defendant as a section hand; that while so employed he was directed by his foreman to assist three other men to unload some steel rails from a coal car having side boards about four feet in height; and that, while one of the rails was being unloaded, the foreman let one end thereof slip, causing it to fall and catch plaintiff's right leg about three inches above the ankle, tearing the muscles and tendons and otherwise severely injuring the same. To this petition, the defendant filed a general denial only.

The cause was tried and submitted to the jury under section 2071 of the Code of Iowa. There was a verdict and judgment in plaintiff's favor; but, upon appeal, the judgment was reversed upon the ground that plaintiff was not at the time of the accident employed in the operation of a railroad, and that section 2071 had no application to the case. Lammars v. R. R. Co., 162 Iowa, 211, 143 N. W. 1097, 52 L. R. A. (N. S.) 199.

Upon remand to the district court, plaintiff, after first securing the permission of the court to do so, filed an amendment to his original petition, slightly amplifying, but not changing, the allegations of negligence, and charging that at the time of the accident plaintiff was employed, and defendant engaged, in interstate commerce, and asked recovery under the provisions of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). A motion, filed by defendant, to strike the amendment upon the ground that it stated a new cause of action, which was barred by the statute of limitations, was overruled, whereupon defendant answered repeating that the cause accrued more than two years before the amendment was filed and that same was, under the federal act, barred. The trial again resulted in a verdict and judgment for plaintiff, and defendant prosecutes a second appeal. It is not claimed by counsel for appellant that the facts do not bring the cause of action within the provisions of the federal Employers' Liability Act, but sole reliance is placed upon the bar of the statute.

The original petition, after alleging “that the defendant, Chicago Great Western Railroad Company, is a corporation organized and created under and by virtue of the laws of the state of Illinois, and is now and has been for some years engaged in owning and operating lines of steam railway throughout the states of Illinois, Iowa, and other states, including a line of steam railway located and operated in a westerly direction from the city of Dubuque to the city of Oelwein in Fayette county, at which point the line divides, one branch going to Kansas City and another to St. Paul, that the said line, as built and operated during the year 1910, passed in an easterly and westerly direction through Dubuque and Delaware counties, in the state of Iowa, and one of the stations of said road in Delaware county, Iowa, being known as Almoral, and up to and prior to the 15th day of April, 1910, the plaintiff was employed as a section hand on the main line of the defendant railroad company's line, with headquarters at Dyersville, Iowa,” further recited that it was the duty of plaintiff, under his employment, to assist in keeping the railroad bed and tracks properly surfaced and in repair, and to assist in the loading and unloading of steel rails, when necessary for that purpose; that at the time of the accident he was assisting to unload the rails upon, and for the purpose of repairing, defendant's main line tracks.

[1][2] As will be seen, it is specifically alleged that defendant owned and operated a line of railway throughout the states of Illinois, Iowa, and other states; that the line from Dubuque to Oelwein extended from the latter place to Kansas City and St. Paul. It is true that the states of Missouri and Minnesota are not mentioned, but the court will take judicial notice that Kansas City is located in Missouri and St. Paul in Minnesota. Sieberts v. Spangler, 140 Iowa, 236, 118 N. W. 292;Green v. Lineville Drug Co., 150 Ala. 112, 43 South. 216, 124 Am. St. Rep. 17;Gilbert v. Moline Water Power & Mfg. Co., 19 Iowa, 319;Hunter v. Railroad Co., 116 N. Y. 615, 23 N. E. 9, 6 L. R. A. 246;Tex. & N. O. Ry. Co. v. Walker, 43 Tex. Civ. App. 278, 95 S. W. 743;Dickinson v. Branch Bank of Mobile, 12 Ala. 54;Siegbert et al. v. Stiles, 39 Wis. 533. Specific allegation that plaintiff seeks to recover under the federal Employers' Liability Act is unnecessary. North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159;Grand Trunk Ry. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168. It is sufficient if, from the ultimate facts pleaded, it appears that both parties at the time of the accident were employed in interstate commerce. North Carolina R. Co. v. Zachary, supra; Grand Trunk Ry. Co. v. Lindsay, supra.

[3] If the amendment served only to amplify, or enlarge, the allegations of the original petition, it related back, and the statute of limitations did not bar the action. Seaboard A. L. R. Co. v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006;Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226;Basham v. Chicago G. W. R. Co., 178 Iowa, 998, 154 N. W. 1019, 157 N. W. 192;Curtice v. Chicago & N. W. Ry. Co., 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 316;Jorgenson v. Grand Rapids & I. Ry. Co., 189 Mich. 537, 155 N. W. 535.

[4] If, however, the amendment stated a new cause of action, it did not relate back, and, as it was filed more than two years after the cause of action accrued, under the provisions of the federal act the bar of the statute was complete. Union P. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983;Walker v. Ia. Cent. R. Co. (D. C.) 241 Fed. 395;Ft. Worth & R. G. Ry. Co. v. Bird (Tex. Civ. App.) 196 S. W. 597;Smith v. Atlantic Coast Line R. Co., 210 Fed. 761, 127 C. C. A. 311.

[5][6] Before seeking to analyze the original petition, or to determine the effect of the amendment in question, we desire to refer to a few of the numerous decisions of the United States Supreme Court, the Circuit Court of Appeals, and state appellate courts upon like questions. Counsel for appellant insistently urge that the holding of the United States Supreme Court in Union P. Ry. Co. v. Wyler, supra, is not only closely in point, but controlling in this case. Plaintiff in that case brought an action against the Union Pacific Railway Company in the circuit court of Jackson county, Mo., alleging that the defendant was negligent in knowingly retaining in its employ an incompetent servant by whose negligence the injury to plaintiff was caused. Upon removal of the cause to the federal court, both parties filed numerous amendments to their respective pleadings, and finally plaintiff abandoned his cause of action, based upon the alleged incompetency of a fellow servant, and set up a cause of action under a statute of the state of Kansas. Whereupon defendant answered pleading the statute of limitations of Kansas and also of Missouri. Upon trial, a verdict was returned in favor of the plaintiff, and judgment entered accordingly. The defendant went, upon error, to the Supreme Court of the United States, where, in a decision by Mr. Justice White (now Chief Justice) it was held that the amendment stated a new cause of action; that there was a departure from law to law; that, as the amendment was not filed within five years after the cause of action accrued, it was, under the law of the state of Missouri, barred by the statute of limitations. The decision of the United States District Court, in Walker v. Iowa Cent. R. Co., supra, holding that an amendment therein filed seeking to bring the case within the law of Congress was too late, and that the cause of action was barred by the statute of limitations, is predicated upon the further finding of the court that it did not appear from plaintiff's petition that either plaintiff or defendant, at the time the injuries were received, was engaged in interstate commerce. The cause of action was brought, and recovery sought, under the state statute. The decision of the Texas Court of Appeals in Ft. Worth & R. G. Ry. Co. v. Bird, supra, involves a state of facts presenting a similar difficulty.

Coming now to the consideration of some of the cases cited and relied upon by appellee, we desire to call particular attention to Seaboard Air Line Ry. Co. v. Renn, supra. The court in that case, after stating that “the original complaint was exceedingly brief and did not sufficiently allege that at the time of the injury the defendant was engaged and the plaintiff employed in interstate commerce,” held that an amendment to the petition filed more than two years after the cause of action arose, which supplied the necessary allegations, related back and did not state a new cause of action. The court said:

“But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested. Sicard v. Davis, 6 Pet. 124, 140, 8 L. Ed. 342, 348;Union P. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983;United States v. Dalcour, 203 U. S. 408, 423, 27 Sup. Ct. 58, 51 L. Ed. 248, 251. The original complaint set forth that the defendant...