Mohr v. Lemle , 69 Ala. 180 ( 1881 )

BRICKELL, C. J".

The general rule, that the allegations and proof must correspond, is applied to actions for slander, verbal or written. The words proved must correspond substantially with the words alleged. The complaint, or declara^tion, can not be supported by proof of words differing from the words alleged, though of equivalent import. — 2 Brick. Dig. 208, § 93. It has not been insisted that the libel given in evidence would have been admissible under the original complaint. The libel therein described was, according to the averments, written and published at a different time from that given in evidence, and related only to the solvency of the plaintiff. In that respect only did it touch the plaintiff in his character as merchant.

The amended complaint, by proper averments, introduces the libel given in evidence, purporting to have been written and publish at a different time from the writing and publication of the libel described in the original complaint; and the matter of it concerns and touches the integrity and the conduct of the plaintiffs without assailing or questioning his solvency. In the leading case of Crimm v. Crawford (29 Ala. 626), construing the present statute of amendments, it was said: “ Under these statutes, we think there is no limit to the power of amending the allegations of a complaint, except that a party should not be allowed to depart in the complaint entirely from the process, or to substitute an entirely new cause of action, or to make an entire change of parties. Either of these things would be tantamount to the institution of a new suit, and would not be an amendment of the old cause of action.” This construction of the statute has since been observed; and following it, the amended complaint, though introducing a libel differing in substance, not of equivalent import or meaning with •that averred in the original complaint, was properly allowed. The form of action is not changed, a cause of action entirely new is not introduced. A libel of the plaintiff, in his trade and.business as a merchant, written and published before the commencement of suit, addressed to the same parties, is the cause of action averred in both complaints. The substance of the allegations is, however, changed; new matter is introduced,, forming a new and independent cause of action, which was not. before the subject of pending suit, and of contestation between the parties. The allegations of the complaint are not simply-varied to meet the phases in which the evidence may present the matter already iu issue, so that there will be a correspondence between allegations and proof; but a libel, essentially distinct and different, in all its parts and tendencies, from that, described in the original complaint, is, for the first time, introduced by the amended complaint. While the cause of action remains a libel, written and published of and concerning the plaintiff, touching his character and credit as a merchant, there is a total departure from the subject of the libel as' averred in the original complaint.

The latitude of amendment allowed the plaintiff, can not be permitted to work injustice to the'defendant, or to deprive him of any just and rightful defense. ' The plaintiff may introduce a new cause of action by amendment; but such amendment can not have relation to the commencement of the suit, so as to-avoid the bar of the statute of limitations, if the statute would operate a bar to a new suit commenced for that cause of action, at the time of making the amendment. The whole doctrine of relation rests in a fiction of law, adopted to subserve, and not to defeat right and justice. When the amendment introduces a new right, or new matter, not within the Us pendens, and the issue between the parties ; if at the time of its introduction, as to such new right or matter, the statute of limitations has operated a bar, the defendant may insist upon the benefit of the statute, and to him it is as available, as if 'the amendment, were a new and independent suit. — King v. Avery, 37 Ala. 169; Lansford v. Scott, 51 Ala. 557; Stringer v. Waters, 63 Ala. 361.

In Weston v. Worden, 19 Wend. 648, the plaintiff declared!' in slcmder for words charging him with malpractice as a physician, and was permitted to amend by adding words of the-same character. But not by adding words charging him-, with being a quack, or practicing without license. These latter' words’ were regarded as a new cause of action, as to which the statute of limitations had probably run. The same question was decided in Smith v. Smith, 45 Fenn. St. 403, the* plaintiff proposing to amend by adding a new count, alleging a. different slander, after the right of action was barred by the-statute of limitations.

The charge given by the Circuit Court seems to us therefore-free from error: First, because there was an entire absence.of evidence that the plaintiff was a merchant, and that defendant had written or published any such libel as was described in the original complaint. Second, because the libel proved was admissible only under the amended complaint, touched and concerned the plaintiff, as an individual, and not as a merchant, there being no evidence that that was his occupation, was entirely variant from that described in the original complaintj and an action to recover damages for its publication was barred by the statute of limitations before it was introduced by the amendment.

The remaing assignments of error were not insisted on in the argument of counsel, and of consequence have not been considered.

Affirmed.