Ala. Great So. R. R. v. Smith , 81 Ala. 229 ( 1886 )

CLOPTON, J.

— The cause of action alleged in the original complaint is, that the plaintiff, having purchased a ticket for transportation from Chattanooga to Valley Head, a station on the railroad of defendant, and being a passenger on its train, “was forcibly ejected and thrown out and, from Ms seat in the cars of said company loithout Ms consent before he reached his destination,” On the trial, after the witnesses had been examined, and the court was charging the jury, the plaintiff, by leave of the court, amended the complaint by adding another count. The cause of action as averred in the additional count is, that when the train reached Eureka, also a station on the railroad, the porter called out Valley Head, and plaintiff was induced thereby to get off the train, believing he was at Valley Head. To the added count the defendant pleaded the statute of limitations of one year, and refiled to the amended complaint the same pleas previously filed to the original complaint.

A comparison of the two counts manifests, that the amendment does not merely vary the allegations of the complaint in respect to a matter already in issue, so as to meet the different phases in which it may be presented by the evidence. A cause of action, based on the forcible and wrongful ejection of a passenger from the cars is essentially different and distinct from a cause of action, based on his voluntarily leaving only induced by a negligent mistake of the porter as to the station at which the train had arrived. "While a new cause of action may be introduced by amendment, the established limitation on the operation of its relation to the commencement of the suit is, that if the amendment introduces new matter or a different cause of action, not within the Us pendens, as to which the statute of limitations has operated a bar at the time of making the amendment, it is as available as if the amendment were a new and independent suit. — Mohr v. Lemle, 69 Ala. 180.

On the pleadings and evidence, the plaintiff was not entitled to recover on either count of the amended complaint. More than one year from the time of the grievance complained of had elapsed before the amendment was made. The statute of limitations operated a bar to a recovery on the cause of action thereby introduced. The evidence which showed that plaintiff voluntarily left the car, being misled by the announcement of the porter, was only admissible under the_ count added by ameudment. There being an entire absence of evidence tending to show a forcible ejection, the plaintiff was not entitled to recover on the cause of action declared on in the original complaint.

The affirmative charge in favor of the defendant should have been given.

Reversed and remanded.