Anderson v. Wetter , 103 Me. 257 ( 1907 )

Cornish, J.

This is an action against the defendant as Receiver of William J. Gray and others, owners and operators of a granite quarry, for negligently causing the death of August Anderson, plaintiff’s intestate. To the original declaration in the writ, the defendant demurred, his demurrer was sustained and the plaintiff was given leave to amend. The amendment when filed was objected to by the defendant but allowed by the presiding Justice and on defendant’s exceptions to this ruling, the case comes before this court.

Two questions are involved : First, was the original declaration intended to be made under the common law? Second, if so, can the writ be amended by substituting for the original declaration a declaration under Revised Statutes, chapter 89, sections 9 and 10.

The original declaration was inartificially drawn, but was manifestly designed to set out a cause of action at common law. In any event, it did not embody the essential elements to bring it within the statutory declaration. It, alleges, not immediate death, nor death without recovering consciousness, but that the intestate "died in about three and one half hours after being thrown as aforesaid and striking upon his head.” A similar allegation in Sawyer v. Perry, 88 Maine, 42, was held to describe a common law right of action. "It fails to appear, either by inference or direct averment, whether he became unconscious from his injuries or endured conscious suffering while he survived.” Conley v. Gas Light Co., 96 Maine, 281.

The amount of damages claimed in the writ is ten thousand dollars, while the limit in the statutory action is five thousand dollars, and the action is brought in the name of the administratrix for the benefit of the estate and not for the exclusive benefit of the widow and children as under the statute.

Our conclusion, therefore, on the first point is that the original declaration was framed under the common law.

That being so, the question arises whether the amendment, clearly introducing a cause of action under the statute, was allowable. All the points above referred to as keeping the original declaration outside the statutory requirements have been changed in the amendment to meet those requirements.

Amendments in matters of form are allowed under Revised Statutes, chapter 84, sec. 10, and in matters of substance under Rule V, of this court. But this rule also provides that "no new count or amendment of a declaration will be allowed, unless it be consistent with the original declaration, and for the same cause of action.” It is familiar law that an amendment introducing a new cause of action is not allowable. Bangor, Old Town and Milford R. R. Co. v. Smith, 49 Maine, 9; Milliken v. Whitehouse, 49 Maine, 527; Cooper v. Waldron, 50 Maine, 80; Farmer v. Portland, 63 Maine, 46 ; Lawry v. Lawry, 88 Maine, 482. The existence of the rule is admitted, its application is sometimes difficult.

What is meant by the term "cause of action?” Some confusion has arisen from a misapprehension of its exact significance.

It does not refer to the facts and circumstances which may be introduced in evidence and because of whose occurrence the action has resulted. Those might be spoken of as causes for action but they are not properly speaking a cause of action.

The term is clearly and discriminatingly defined by Mr. Pomeroy, as follows:

"The primary right belonging to plaintiff and the corresponding duty belonging to defendant, and the delict or wrong done by the defendant, consisting in a breach of such primary right or duty, constitute a cause of action.” Pomeroy Rem., sec. 452.

So too, causes of action are often confounded with remedies. This is clearly brought out in the case of Emory v. Hazard Powder Co., 22 S. C. 476, 53 Am. Rep. 730, where the court say : "Causes of action are very often confounded with remedies ; and being regarded as synonymous, the rules established with reference to the one are sometimes supposed to be applicable to the other. This however is a mistaken view of the subject, as a brief investigation will show. A cause of action may be defined in general terms to be a legal right, invaded without justification or sufficient excuse. Upon such invasion a cause of action arises, which entitles the party injured to some relief, by the application of such remedies as the laws may afford. But the cause of action, and the remedy sought are entirely different matters. The one precedes, and it is true, gives rise to the other, but they are separate and distinct from each” other, and are governed by different rules and principles. It is true, that the motive which prompts the action is a desire for relief, and'to obtain this relief is the object of the action; but this is not the legal sense of the phrase "cause of action.” On the contrary, that sense is as stated above; i. e. a breach of one’s legal rights.”

A cause of action is therefore neither the circumstances that occasioned the suit, nor the remedy employed, but a legal right of action. The adjectives good and bad cannot, strictly speaking, be. applied to it. "If a person have a legal right to sue, he has a good (.that is legally sufficient) cause of action. If he have no legal right to sue, he has not merety a bad cause of action, but no cause, so that good cause of action can never mean more than cause of action.” Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588.

With this definition in mind that a cause of action is a right of action, let us consider the nature of the proposed amendment. "By the common law no value is put upon human life to be recovered in the way of damages.” Nickerson v. Harriman, 38 Maine, 277; Carey v. Berkshire R. R., 1 Cush. 475. No cause or right of action exists in case of such wrongful death. This means, not merely that there exists a cause of action which is extinguished or ab.ated by other recognized legal principles, but that no cause or right of action ever arises or exists for such a wrongful act.

Such is the doctrine of the common law under which the original declaration in this writ was framed.

But, following Lord Campbell’s Act in England, 9 and 10 Victoria, chap. 93, (1847), in most of the States the common law has been abrogated to a greater or less extent, and by statute a new cause of action has been created.

In this State as early as 1821, an act was passed providing for recovery by indictment for the use of the heirs, in case a life was lost through a defect in a highway for which a town was liable. By chapter 70 of the Public Laws of 1848, a similar provision was enacted with reference to steamboats and railroads, fixing the limit of recovery at $2000, which act was superseded by chapter 161 of the Public Laws of 1855, making the limit $5000.

This provision was held to have been made to obviate the objection to such recovery arising from the long established doctrine of the common law that no action for damage could be sustained for such loss of life. State v. Grand Trunk Railway, 58 Maine, 176.

This proceeding by indictment continued until 1891 when in chapter 124 of the Public Laws, the Legislature passed an act "To give a right of action for injuries causing death,” by a civil suit, brought in the name of the personal representatives, for the benefit of the widow and children or heirs of the deceased, and extending the scope to any person or corporation through whose wrongful act or negligence the death occurred. The passage of this act was held to supersede and abrogate the remedy by indictment. State v. Maine Central R. R. Co., 90 Maine, 267. The Act of 1891 is now embodied in Revised Statutes, chapter 89, sections 9 and 10.

The effect of this legislation is apparent. It was not to create a new remedy for an existing cause of action but to create the cause of action itself where none existed before. It was therefore necessarily a new cause of action, a new right of action.

The two causes are inherently distinct, both in their nature and in their results. The statutory cause of action begins where the common law leaves off. The common law gave to the personal representative a right of action to recover for conscious suffering up to the time of death, but nothing for the death itself. The statute .does not apply in case of conscious suffering, and therefore gives no damage for that; but ¡for the death itself which must follow immediately. The former is brought for the benefit of the estate, the latter for the benefit of the next of kin, and ignores the estate. The rule of damages in the two actions is entirely different, McKay v. New England Dredging Co., 92 Maine, 454, and while the amount under the statute is limited to $5000, at common law it is unlimited. The limitation of the common law action is six years, of the statutory action two years. With different parties in interest, different ground of suit, different rule of damages, different application of funds and different period of limitation, can there be any doubt that there is a different and a new cause of action.

In Sawyer v. Perry, 88 Maine, 42, the court, in discussing the purpose of the statute, yay, the object was "not to give a new right of action where ample means of redress already existed, but to supplement the existing law, and give a new right of action in a class of cases where no means of redress before existed.”

In McKay v. New England Dredging Co., supra, the court say: "The right' to any compensation is wholly created by the statute and the amount of the compensation is to be measured solely by the standard prescribed by the statute. At common law, in cases like this there was no right of action in the widow, children or heirs for any compensation. . . . The statute is to be construed as a new statute creating a new right and not as affirming or reviving an ancient right.”

Similar statutes have received the same construction in other jurisdictions, where they have been held to be, not remedial in their nature, but creative of a distinctly new and independent right. Fink v. Garman, 40 Pa. St. 95 ; Matz v. Chicago & A. R. R. Co., 85 Fed. Rep. 180; Union Pacific Railroad v. Wyler, 158 U. S. 285.

The test as to what constitutes a new cause of action was laid down by Chief Justice Parker in Ball v. Claflin, 5 Pick. 303, as follows: "The new count, offered under leave to amend, must be consistent with the former count or counts, that is, it must be of the like kind of action, subject to the same plea, and such as might have been originally joined with the others. It must be for the same cause of action, that is, the subject matter of the new count must be the same as of the old; it must not be for an additional claim or demand, but only a variation of the form of demanding the same thing.”

The same court had occasion to apply this test in the recent case of Brennan v. Standard Oil Co., 187 Mass. 376, where they held that a count by an administrator for the benefit of the next of kin under the statute, for causing the death of plaintiff’s intestate, cannot be joined with a count at common law for conscious suffering of the intestate before his death. This case is precisely in point as showing that the new count is not "consistent with the original declaration” as required by our rule of court. The learned counsel for the plaintiff cites many cases where amendments in matters of substance have been allowed, but a careful examination shows that they were all within their legitimate sphere. They simply contained a fuller statement of the plaintiff’s claim as in Mitchell v. Chase, 87 Maine, 172, where the court found that the plaintiff intended to institute an action under the statute relating to damages by dogs, but failed to set it out in detail; or the amendment was merely additional to the description of the alleged defect as in Chapman v. Nobleboro, 76 Maine, 427; Babb v. Paper Co., 99 Maine, 298, and similar cases. They all come within the rule laid down by this court in Pullen v. Hutchinson, 25 Maine, 249, and Annis v. Gilmore, 47 Maine, 152, that "where an intended cause of action is defectively set forth, and yet so as clearly to be distinguished from any other cause of action, in the manner it would be if the declaration was perfect, then the amendment may be properly allowed.” In other words, an amendment in the case at bar which would make a fuller statement of the plaintiff’s claim at common law would be allowable, but to insert an inconsistent count and a new and entirely different cause of action is a subversion of the rule.

The case falls more nearly within the decision in Milliken v. Whitehouse, 49 Maine, 527, where the court say "the original count contained nothing that would or could lead to the conclusion, or even the suspicion, that the facts made essential to the mainten-anee of the action required by sec. 3, chap. 109, of the statute of 1844, were any part of the cause of action, and it does not. fall within the provisions of the statute allowing amendments in the discretion of thé court.” It is further argued that the amendment should be allowed because it is based upon the same facts as the original declaration, and that in that sense the cause of action is the same. This arises from misapprehension as to the meaning of the term "cause of action,” before defined. The point is answered by the Supreme Court of the United States in these words : "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. The most common, if not the invariable, test of departure in law, as settled by the authorities referred to, is a change from the assertion of a cause of action under the common or general law to a reliance upon a statute giving a particular or exceptional right.” Union Pacific Railway v. Wyler, 158 U. S. 285.

It is doubtless true that greater liberality than formerly is allowed in the matter of amendments, and that mere technicalities are not viewed with favor. But it is also true that well established principles and precedents are not to be lightly set aside. "It will not be wise to depart too far from the established rules of pleading. Constant departure from these rules will soon result in confusion. In the end it will be found' that justice will be better subserved by • adhering to the remedies provided by law than in departing from them.” Lawry v. Lawry, 88 Maine, 482.

Our conclusion therefore is, that the amendment was improperly allowed, and the entry must be,

Exceptions sustained,