Westover v. Hoover

• Decision Date: 12 November 1913
• Docket Number: 17,990
• Citation: 143 N.W. 946,94 Neb. 596
• Parties: EDWARD WESTOVER, APPELLEE, v. ABRAHAM L. HOOVER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

143 N.W. 946

94 Neb. 596

EDWARD WESTOVER, APPELLEE, v. ABRAHAM L. HOOVER ET AL., APPELLANTS

No. 17,990

Supreme Court of Nebraska

November 12, 1913

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed and dismissed.

Judgment of the district court reversed, and the plaintiff's action dismissed.

E.C Strode, Jesse L. Root and M. V. Beghtol, for appellants.

E.P Holmes and G. L. De Lacy, contra.

BARNES, J. LETTON, ROSE and SEDGWICK, JJ., not sitting.

OPINION

BARNES, J.

This case is before us on a second appeal. Our former opinion is reported in 88 Neb. 201, where the facts of the case are fully stated, and, except such of them as may be necessary to a determination of this appeal, will not be repeated in this opinion.

The former appeal resulted in a reversal of the judgment of the district court, and when the cause was remanded for further proceedings the plaintiff amended his petition and sought a recovery on the ground that, while he was employed by an independent contractor, he was at work upon the defendants' premises by invitation, and was injured by the negligence of the defendants in not furnishing a safe place to work, in not having the premises sufficiently lighted, and by negligently failing to warn the plaintiff of the dangers there existing by reason of the installation and operation of an ice machine in close proximity to the place where the plaintiff was working. Among other defenses the defendants pleaded the statute of limitations. On the second trial the plaintiff had the verdict and judgment, and the defendants have appealed.

It is contended that the court erred in not sustaining the plea of the statute of limitations, and in not directing a verdict for the defendants. When this action was commenced it was one to recover for personal injuries alleged to have been sustained by the plaintiff while in the defendants' service on account of having been set to work by one De Vore, the defendant's foreman, in an unsafe place containing an ice machine in operation, the premises not being properly lighted, the machine being composed in part by a piston and revolving wheel, which was left unguarded, and no warning was given to plaintiff as to the danger, by reason of which his heel was caught and crushed by the revolving wheel and piston. The case was tried upon that theory, and there was no suggestion that the defendants had incurred any other liability than that of a master to his servant. On the former appeal it was held that the relation of master and servant did not exist between the plaintiff and the defendants at the time when the injury was sustained, and for that reason the judgment of the district court was reversed and the cause was remanded for further proceedings. When the mandate was returned to the district court the plaintiff amended his petition by eliminating the allegation that he was defendants' servant at the time he received his injuries, and there was substituted the allegation that plaintiff was working for an independent contractor, and was upon the defendants' premises by their invitation; that he was injured by their negligence, as above stated. The amended petition was filed more than four years after the plaintiff sustained his injuries, and, if in effect it stated a new and different ground of recovery, then the bar of the statute was complete, and the trial court should have directed a verdict for the defendants in compliance with their request.

In support of their contention the defendants 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: "A cause of action alleged in an amended petition, although founded upon the same injury as that described in the original, is a different cause of action, if it is dependent entirely upon different reasons for holding the defendant responsible for the wrong alleged."

In an opinion by the present chief justice of the United States in Union P. R. Co. v. Wyler, 158 U.S. 285, 39 L.Ed. 983, 15 S.Ct. 877, the effect of a departure from the theory first presented in an action is discussed, and, in disposing of the argument that all the facts necessary to entitle the plaintiff in that case to recover were alleged in the original petition, it was said: "It is argued, however, that, as all the facts necessary to recovery were averred in the original petition, the subsequent amendment set out no new cause of action in alleging the Kansas statute. If the argument were sound, it would only tend to support the proposition that there was no departure or new cause of action from fact to fact, and would not in the least meet the difficulty caused by the departure from law to law."

Martin v. Pittsburg R. Co., 227 Pa. 18, 75 A. 837, was an action brought originally to recover for the death of the plaintiff's husband. The negligence charged was shown to be unfounded, and it was held that plaintiff could not amend by setting up a different theory charging different negligence after limitations have become a bar. Where an action is brought to recover for the death of a person, not an intending passenger, at a street crossing, and the evidence shows no negligence on the part of defendant railroad company, an amended statement alleging that the person injured was an intending passenger will not be allowed after limitations have become a bar.

Allen v. Tuscarora V. R. Co., 229 Pa. 97, 78 A. 34, was an action brought by a brakeman against a railroad company for injuries received while coupling cars. The original statement was in trespass at common law alleging that the injuries were caused by defendant's negligence in using a coupler more dangerous than the ordinary coupler employed by railroads. An amendment alleging that the defendant was, at the time of the injury, engaged in interstate commerce, with its cars equipped with couplers in violation of the act of congress, March 2, 1893 (27 U.S. St. at Large, ch. 196, p. 531), making it unlawful for a carrier to use cars in interstate traffic not equipped with automatic couplers, and providing that employees injured by a car or train not so equipped shall not be deemed to have assumed the risk occasioned thereby, was held to set up a new cause of action which was barred by the statute of limitations. It was there said: "A departure in pleading may be either in the substance of the action or defense, or in the law on which it is founded."

In Elrod v. St. Louis & S. F. R. Co., 113 P. 1046 (84 Kan. 444), the court held: "Where, in an action for injuries to a license, there was no allegation that defendant was negligent in failing to light its depot platform, the petition could not be amended so as to charge such failure as a ground of negligence after limitations had run against it."

Chicago & A. R. Co. v. Scanlan, 170 Ill. 106, 48 N.E. 826, was an action for injuries caused by the falling of a scaffold. The original declaration averred that the scaffold fell owing...