Hess v. Birmingham Railway, Light & Power Co. , 149 Ala. 499 ( 1906 )

DOWDELL, J. —

The complaint contained two counts, both of which, subsequent to- the filing, were amended. The only question presented is whether by the amendment a new claim or new cause of action was introduced into the complaint, to which the statute of limitation might be pleaded as a defense. The first count of the complaint was in case, and the description of the locus in quo- of the alleged injury placed it on the line of the defendant’s railway running from Birmingham to Woodlawn, and. “in or near said Birmingham.” The amendment to this count, in the description of the locus in quo, averred it to be on the defendant’s line of railway running from Birmingham to West End;, the only change being to insert “West End” for “Wood-lawn.” The amendment also changed the word “defendant,” as it last occurred in the first count, to the words “defendant’s servant or agent, acting within the line and scope of his authority as such,” and by changing the word “its,” where last occurring in the count, -to the word “defendant’s.”

The question here raised was carefully considered by this court in the case of Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52. Under the principles laid down in that case, and on the authorities there cited, we are of the opinion that the amendment of the first count in the case before us did not introduce a new claim or new cause of action, but falls within that character or class of amendments which relate back to the. commencement, of the suit, and therefore not subject to the plea of the statute of limitations. In the first place, an averment of the precise place of the alleged injury was not essential to the statement of a good and sufficient cause of action. ' The particular place of the alleged injury of the plaintiff while a passenger, by the negligence of the defendant, borrowed no part of the cause of action, nor did it enter as an element in the claim sued on. As suggested in the argument by counsel, when the change made by the amendment is tested, “the wrong camplained of is the same, the injury inflicted is the same, the manner of its infliction is the same, plaintiff’s and defendant’s status is the same, defendant’s duty to the plaintiff is the same, and its violation the same,” and, it may be added, the evidence required to support the claim or cause of action .remained the same in character. There is no pretense that there was but the one claim, the one cause of action, the one .alleged wrong and injury, indeed, the plea as filed in substance admits this. The identity of the claim or cause of action under these circumstances was not destroyed or lost by a mere change in the description of the locality of the happening of the alleged wrong and injury. The effect wrought by the amendment of the second count, however, was different, under the doctrine laid down in Nelson v. Bank, supra. The second count, as originally filed, under' the decision in City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389, and the cases following that one, Avas in trespass, and the amendment to this count converted it to one in case. This introduced into the complaint a neAV and different cause of action from that stated in the second count as originally filed, which did not relate back to the commencement of the suit, and Avas consequently subject to the plea of the statute of limitations.

The trial court, on the theory that the amendment of the first count introduced a neAV claim, being subject -to the defendant’s plea of the statute of limitation, gave the general charge for the defendant. In this the court Avas in error, and for this error'the judgment must be aeA^ersed and the cause- remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.