Love v. Southern Ry. Co.

• Decision Date: 09 November 1901
• Parties: LOVE v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

65 S.W. 475

108 Tenn. 104

LOVE v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

November 9, 1901

Appeal from circuit court, Washington county; H. T. Campbell, Judge.

Action by J. S. Love, as administrator of the estate of George Miller, deceased, against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Isaac Harr and S.E. Miller, for appellant.

Kirkpatrick Williams & Bowman, for appellee.

WILKES J.

This is an action for damages for personal injuries resulting in the death of George Miller. His administrator procured the issuance of summons October 2, 1899, which was executed October 4, 1899. This summons was in the following words and figures: "State of Tennessee, Washington County. Original Summons. To the Sheriff of Washington County--Greeting: You are hereby commanded to summon the Southern Ry. Co., if to be found in your county, to appear before the judge of our law court, at a court to be held in the court house in the town of Johnson City on the third Monday in December next, then and there to answer J. S. Love administrator of the estate of George Miller, in an action for personal injuries resulting in the death of said George Miller, to plaintiff's damage $2,000.00," etc. A declaration was filed December 20, 1899. It was demurred to December 22, 1899. This demurrer was not heard until April 1900. It was then amended in a marginal note, but in what does not appear, and the demurrer was overruled, and defendant given 60 days in which to plead. The general plea of not guilty was filed August 3, 1900. On August 20th defendant obtained continuance for the term. At the next term, and on 17th December, 1900, the trial of the cause was entered upon. When the first witness for plaintiff was being examined he was asked whether George Miller, the deceased left as his widow Elizabeth Miller, when the defendant objected that the declaration did not aver that fact, and the court sustained the objection, to which the plaintiff excepted. Plaintiff then offered to prove that the widow of deceased was still living, to which like objection was made, and by the court sustained, to which exception was taken. The plaintiff thereupon moved to amend his declaration by further averring that the deceased, George Miller, at the time of his death, left surviving him, as his widow, Elizabeth Miller, at whose instance the plaintiff brings the suit, and for whose use and benefit the plaintiff sues and demands a jury. At a subsequent day of the term, but before any further action had on the trial, the motion to amend was disallowed, the order reciting that the motion should be disallowed because, as contended by counsel of defendant, the bar of the one-year statute of limitations had become complete. To this action the plaintiff excepted, and the motion to amend, and to disallow, and the action of the court thereon, were made parts of the record by bill of exceptions. The court charged the jury that plaintiff could not recover because the existence of a statutory beneficiary had not been averred. There was a verdict for defendant, and plaintiff has appealed, and assigned errors.

The questions presented to this court are: (1) Should the amendment proposed have been allowed? (2) Should it, if allowed, relate back to the date of the summons or declaration, or only take effect at the time it was made, in view of the defense of the statute of limitations set up and relied on by the defendant? It is proper to add that the demurrer in the court below did not raise these questions, as it was filed and acted upon before the amendment was proposed. Neither was it suggested in the demurrer that the original declaration did not state the existence of beneficiaries, the grounds of demurrer being wholly different, and other matters.

Considering the question whether the amendment should have been allowed The general rule is thus stated in Tiff. Death Wrongf. Act, § 187: "The complaint or declaration may be amended as in other actions, when the amended pleading does not state a new cause of action, and such amendment, although made after the expiration of the period of limitation, will relate back to the commencement of the action. ***" But it is said, "The decisions are not entirely harmonious in the application of the rule." Section 187. Illustrations are given as to what amendments may be made and fall within the rule, and among them is placed an amendment which adds an allegation that the deceased left a wife and children. Section 187, note 85. For this statement in the text the author cites Railway Co. v. Nix, 68 Ga. 572; Haynie v. Railroad Co., 9 Ill.App. 105. We have examined the former, but have not had access to the latter, case. In considering this proposition, we have also examined, in addition to our own cases, the cases of Railroad Co. v. Becker, 84 Pa. 419, Railroad Co. v. Wilson, 85 Tex. 516, 22 S.W. 578, and other cases. The general principle is that when the amendment does not set up a new cause of action, or bring in new parties, the running of the statute is arrested at the date of the filing of the original pleading. 1 Enc. Pl. & Prac. p. 621. But when a new cause of action is introduced the statute runs against it to the time when it is filed. 1 Enc. Pl. & Prac. 622. And these principles have been laid down by our own courts. Nance's Lessee v. Thompson, 1 Sneed, 321; Burgie v. Parks, 11 Lea, 84; Crofford v. Cothran, 2 Sneed, 492. The difficulty is not in stating the rule, but in its application to the facts of each case, and in determining what introduces and constitutes a "new cause of action," in the sense in which that term is used. It is evident that the term "new cause of action" may refer to a new state of facts out of which liability arises, or it may refer to new parties who are alleged to be entitled under the same state of facts, or it may embrace both features. In Railway Co. v. Nix, 68 Ga. 572, there was a suit in the Georgia court under a statute of South Carolina, where the killing occurred, and the declaration failed to allege the existence of statutory beneficiaries. An amendment to that effect was permitted, and it was held that it related back to the filing of the original declaration, and, if the original action was not barred, the action as made by the amendment would not be. See page 581. In Coal Co. v. Decker, 84 Pa. 419, the suit was brought by the widow in the time limited; and before trial, but after the year, the declaration was amended by naming the children as jointly entitled to damages with her. It was held that the limitation had no application to the subsequent amendment of the declaration, but only to the bringing of the original suit. In Railway Co. v. Wilson, 85 Tex. 516, 22 S.W. 578, it was held that, when the evidence developed the fact that there were other relations entitled to share in the recovery who were not joined, the proceedings must be arrested until the pleadings are so amended as to show that the suit is for the use of all the beneficiaries; citing Railway Co. v. Culberson, 68 Tex. 667, 5 S.W. 820. And in Railroad Co. v. Spiker, 59 Tex. 437, it was said that it was no answer to an objection made for the want of the necessary parties to reply that the claim of the unjoined beneficiary is barred by the statute of limitations. In the case of Railway Co. v. Culberson, 68 Tex. 667, 5 S.W. 820, referred to supra, it was held that the amendment of a complaint so as to make a new party plaintiff does not, as to the original plaintiffs, set up a new cause of action, and as to them defendant cannot avail himself of the plea of the statute of limitations; but if the action was not originally brought by or for the benefit of the new party plaintiff, and he was not made a party until after the statutory limitation had run against him, the statute may be pleaded in bar of any recovery by him. In Conlin v. City Council of Charleston, 15 Rich. Law, 201, it was held that the declaration should show the existence of the statutory beneficiary, and that a failure to do so would be fatal on demurrer, but that such defect would be cured by verdict when the objection was not made on trial. A new trial was, however, granted in the case on other grounds, and leave was given the plaintiff to amend. In the case of Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932, the allegation in the complaint was that plaintiff and -- children of tender years were solely dependent for a support and subsistence on the intestate, but it failed to state that they were his widow and children, or that the action was for their benefit, as such, under the statute. It was held that, by virtue of these omissions, the complaint failed to state facts sufficient to constitute a cause of action, and demurrer on this ground was properly sustained. It was sought at the trial to amend so as to allege that the intestate left a widow and children for whose benefit the action was brought. It was held by the court that such amendment, because it would be alleging a cause of action when none was stated before, would be giving a cause of action by the amendment when none was alleged in the complaint, and when none could exist at the time of the amendment, for the reason that the two years allowed within which to bring such action had elapsed. The court said: "We think his honor (the trial judge) was right in holding that the amendment proposed would have entirely changed the nature of the action, and therefore not allowable." In Railway Co. v. Hooper, 35 C. C. A. 24, 92 F. 320, our own statutes were under consideration by the United States circuit court of appeals of the Sixth circuit, and it was held that it was necessary to the maintenance of the action that there should be persons in existence for...