Holmes v. Pennsylvania Railroad , 220 Pa. 189 ( 1908 )

Opinion by

Mr. Justice Fell,

This action was brought by a father to recover for the death of his son eighteen years of age, who was killed while a passenger on the defendant’s road. It appeared from the testimony at the trial that the deceased was survived by both parents, and a motion to amend the record so as to make the mother a party plaintiff was allowed against the objection of the defendant. The assignments of error relate to the allowance of the amendment and to the measure of damages.

Amendments have been liberally allowed in furtherance of the object of the statutes to relieve against mistakes of either fact or law and in the interest of justice to secure a trial on the merits. But the well-defined limitation of the right of amendment is that no new cause of action shall be introduced and no new parties brought in after the statute of limitations has become a bar. It was said in Cassel v. Cooke, 8 S. & R. 268, in relation to the cause of action, that “ The true criterion is whether the alteration or proposed amendment is a new or different matter, another cause of controversy, or whether it is the same contract or injury and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case.” This distinction has been observed uniformly in a long line of cases, among the more recent of which are Grier v. Assurance Co., 183 Pa. 334; Garman v. Glass, 191 Pa. 101; Wright v. Copper Co., 206 Pa. 214; Wilkinson v. North East Borough, 215 Pa. 486. While a change of parties that involves a substantial change in the cause of action will not be allowed, as the substitution of the heirs of a decedent for the administrator of his estate: Wildermuth v. Long, 196 Pa. 541; or the substitution of a widow as admintratrix as plaintiff in an action she had brought in her own right: La Bar v. Railroad Co., 218 Pa. 261; still where the rights of a party are liable to be defeated by having joined too few or- too many as plaintiffs or defendants, amendments that would deprive the opposite party of no right have been allowed: Booth v. Dorsey, 202 Pa. 381.

The amendment allowed in this case placed on the record as plaintiffs the persons who were entitled to sue, the right of action being vested by the act of 185.5 in both parents. The cause of action remained the same and no change in the allegations or proofs was involved, and the defendant was not in the slightest degree prejudiced by it. Without question a change in the name of partners or the adding of the names of partners omitted by mistake or the name of another administrator or trustee or of a use plaintiff would be allowed after the bar of the statute. The principle on which such amendments are allowed should govern in this case. In Railroad Co. v. Decker, 84 Pa. 419, a widow who had brought an action in her own right to recover for the death of her husband was allowed after the bar of the statute to amend her declaration by naming “ the parties entitled in such action ” as required by the Act of April 26, 1855, P. L. 309.

The assignments of error that relate to the measure of damages must be sustained. The plaintiff, William A. Holmes, had for a number of years been the sales agent of two companies in a certain territory and was entitled to five per cent on all sales made in the territory whether actually made by him or not. His commissions on sales were approximately $12,000 a year. On account of the plaintiff’s illness his son had gone into this territory as his father’s representative and had been so employed three months before he was killed. The accounts of both companies were kept as before in the plaintiff’s name, but the commissions were paid by one of the companies to his son, who handed them to him. Ho definite arrangement had been made as to what the son was to receive for his services. Testimony was admitted and the case was submitted to the jury on the theory that the son was entitled to all the commissions earned from sales. There was error in this. The business was the plaintiff’s, in which his son assisted him. He had created it and controlled it, and owned it as fully and derived as much from it after his son’s death as before. His pecuniary loss was not the value of the business, but the value of his son’s assistance in carrying it on.

The judgment is reversed with a venire facias de novo.