Noe v. O'Neil

• Citation: 314 Ky. 641,236 S.W.2d 893
• Parties: NOE v. O'NEIL.
• Decision Date: 16 February 1951
• Court: United States State Supreme Court (Kentucky)

Page 893

236 S.W.2d 893

314 Ky. 641

NOE v. O'NEIL.

Court of Appeals of Kentucky.

Feb. 16, 1951.

R. L. Pope, Knoxville, Tenn., Oscar Black, Corbin, for appellant.

Glenn H. Stephens, L. O. Siler, Williamsburg, Thomas F. Young, Corbin, for appellee.

SIMS, Justice.

This is the second appeal of this case. Our former opinion reported in 301 Ky. 472, 192 S.W.2d 366, under the style of O'Neil v. Noe, gives a clear and concise statement of the facts involved and they will not be restated here, except when necessary for an understanding of the issues raised on this appeal.

The parties here will be referred to as plaintiff and defendant, the positions they occupied in the trial court. There have been four trials of the case. The first resulted in a verdict for the plaintiff in the sum of $2500, but that judgment was reversed for the reasons set out in the first opinion. There was a hung jury on the second trial. On the third trial there was a verdict of $5000 for plaintiff but the trial judge set it aside, without indicating his reasons for so doing, to which ruling plaintiff objected and filed her bill of exceptions. A verdict was returned for defendant on the fourth trial and the court overruled plaintiff's motion for a new trial, as well as her motion to substitute the verdict on the third trial for that rendered on the fourth and to enter judgment for her in the sum of $5000.

At the outset we are confronted with a question of procedure. It was on Oct. 17, 1947, when the trial court overruled plaintiff's motions to which we have just referred. The record was filed in the office of the clerk of this court on Oct. 17, 1949, and defendant asks that the appeal be dismissed because it was not filed within two years from the date on which the final order was made, as required by Civil Code of Practice Sec. 745, citing Board of Councilmen of City of Frankfort v. Farmers' Bank of Kentucky, 105 Ky. 811, 49 S.W. 811; Sickmeier v. Merchants & Mechanics Loan & Bldg. Ass'n of Newport, 291 Ky. 182, 163 S.W.2d 475; Kudelle v. Vizzard Inv. Co., 194 Ky. 604, 240 S.W. 54. These authorities sustain defendant's position that Sec. 745 of the Civil Code of Practice is mandatory; also, that the two years within which an appeal may be taken from an order entered on Oct. 17, 1947, expired on Oct. 16, 1949.

But plaintiff's attorney filed his affidavit to which was attached the receipt the express company took from the clerk of this court when it delivered to him the record. This receipt shows the record was delivered to the clerk's office and receipted for by his deputy on Oct. 14, 1949. Also attached to his affidavit is his cancelled check for $5 dated Oct. 12, 1949, payable to the clerk for the filing fee. The affidavit shows this check was included in the express package containing the record.

Ordinarily, we look only to the record on a motion to dismiss an appeal for not having been filed in time. But here plaintiff conclusively shows the record and his check were delivered to the clerk's office on Oct. 14, 1949. He did all the law required of him when he delivered the record and his check to the clerk on Oct. 14, 1949, and should not be held responsible for the clerk's failure in not filing the record, or endorsing thereon that it was filed, until Oct. 17th. The motion to dismiss the appeal is overruled. See Bobbitt v.Cundiff, 296 Ky. 802, 177 S.W.2d 596.

Plaintiff's brief does not call attention to any error made on the fourth trial, therefore we are only concerned with the one question of whether the trial judge abused his discretion in setting aside the $5000 verdict for plaintiff on the third trial. Defendant's motion for a new trial set out ten grounds among which were the court erred: 1. in permitting plaintiff to file the second amended petition; 2. in allowing plaintiff to introduce in rebuttal testimony that defendant had repaired the steps after the accident; 3. the verdict for $5000 was grossly excessive.

As was said in the first opinion, the petition, though ineptly drawn, stated a cause of action. It averred the accident happened on Sept. 9, 1944, and was caused by defendant's negligence in permitting the lighting to get out of repair and causing the stairway to be dark; also, in not providing handrails. The first amended petition corrected an allegation as to defendant being incorporated and, after repeating the averments that he negligently failed to properly light the steps and hallway, stated the 'floor planks at the head of the steps was defective, broken or worn away'. The second amended petition was tendered on Oct. 18, 1946 (which was more than two years after the accident), and was subsequently filed. This pleading averred the top step was 'split, cracked and bursted * * * and had been in such condition for several months, and it was said defective condition which pitched her forward and threw her down said stairway'. For the first time in this second amended petition reference was made to the top step being defective. Defendant argues this amendment changed plaintiff's cause of action and as it was tendered and filed more than a year after the accident, it was barred by the one year statute of limitation, KRS 413.140.

The rule is that an amendment is not barred by limitation if it does not introduce a new claim or different cause of action but merely restates in a different form the cause of action originally pleaded. 34 Am.Jur. 'Limitation of Action', Sec. 260, p. 211; Smith v. Bogenschultz, 14 Ky.Law Rep. 305, 19 S.W. 667, 20 S.W. 390; Louisville & N. R. Co. v. Greenwell's Adm'r., 155 Ky. 799, 160 S.W. 479; O'Brien v. M. & P. Theatres Corp., 72 R.I. 289, 52 A.2d 781, 171 A.L.R. 1081. See annotations following the O'Brien opinion, 171...