Whalen v. Gordon

CALDWELL, Circuit Judge

(dissenting). It has frequently been pointed out that the technical rules of pleading relating to the doctrine of election at common law have no application under the Code. As said by Mr. Bliss, when all forms of actions were abolished, the reasons upon which the doctrine was founded passed away; and he adds:

“Had the provisions of the Code in this regard in the beginning been viewed from a scientific standpoint; had the bench and bar been able to emancipate themselves from old ideas and habits of thought, — we should no longer hear of this right of election. * * *” Bliss, Code Pl. § 154.

In Folsom v. Carli, 6 Minn. 420 (Gil. 284), Judge Flandrau, speaking for the court, said:

“AVhile the forms of actions were in existence, a party had what was called the Tight of election of actions.’ This right, in the hands of a skillful pleader, could be used to great, advantage. The subject is fully treated in 1 Chit. Pl. 207, 212, ‘Of Klection of Actions.’ But it is believed that with the abolition of ihe forms of action, and the substitute adopted by our statute, together with the new system of pleading, many, if not all, of these advantages are necessarily lost to the pleader.”

The sound rale, under the Code, is that the party may bring any number of actions for the same cause of action, or for a cause of action arising out of the same transaction, and that he is in no wise to be prejudiced for having done so beyond the payment of costs. He may sue, and continue to sue, until he obtains satisfaction. He can have but one satisfaction, but he can continue to sue until he obtains that.

When the plaintiffs discovered, as they believed, that they had been swindled, they made an effort to impound their negotiable notes which they had given for the horse. But the suit failed of its object. The notes had been carried beyond the jurisdiction of the court, and no service of summons was made on the defendant, and the suit abated. The plaintiffs, in all common sense and reason, lost no right by making this abortive effort to protect themselves from loss.

The present suit was brought in Iowa long before the bar of the statute of limitations had attached to the cause of action. But it is claimed that, as the charge of the court and the verdict of the jury were based entirely on the amendments to the petition, and they were filed after the bar of the statute had attached, the plea of the statute of limitations is effectual to defeat a recovery. Under the Code, a different statement of the same transaction does not constitute a different or new cause of action. When the same transaction may be stated in different forms, and each statement constitutes a good cause of action, the difference in their statement does not convert them into different causes of action. The real cause of action is the same, and it is only the statement of it that is different. This must be so in a state where “all forms of action are abolished,” and the petition is only required to contain “a statement of the facts constituting the plaintiff’s cause of action.” The mere form of stating the transaction out of which the cause of action arose cannot alter the cause of action itself, nor does a different remedy under the Code alter the cause of action. • Under the old system of pleading, particular words and phrases and particular forms were regarded as matters of substance, and determined the cause of action; and, as a result of the refinements and technicalities of that system, a difference in the statement of a cause of action was the statement of a new and different action, and therefore of a new or independent cause of action. But that doctrine does not obtain under the reformed system of pleading. From the beginning to the end of this action, — under the original petition and the amendment, — the plaintiffs refer to the written warranty as furnishing a basis for recovery. It was introduced in evidence, and must have been, to entitle the plaintiffs to recover in any form of action; for, in its absence, the rule of caveat emptor would have applied, and there could have been no recovery at all on any statement of the cause of action that could have been made independent of the warranty. The case was rightly tried upon this theory. Judge Shiras, in his charge, told the jury:

“If the contract of warranty was not kept, having exercised the right of rescission, it gives them the right to demand back the notes. They [the plaintiffs] are entitled, if the evidence satisfies you there was a breach of the warranty, they are entitled to recover, upon that branch of the case, the principal and interest they were compelled to pay.”

Moreover, the contract was evidenced by the written warranty, and, if the plaintiffs had counted on any other contract, the defendant would have been quick to object to parol evidence to prove it. and the plaintiffs would have been beaten because they did not count on the written warranty.

A case directly in point, aud conclusive of this case, is Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905. In that case the original petition alleged that the injury to the plaintiff’s intestate, who was a freight conductor in the employ of the defendant, was caused while he was attempting to make a coupling of cars, “by reason of the defective condition of the cross-ties and of the roadbed,” through the negligence of the defendant. The amended petition, which was filed after the time within which the action could have been commenced, diarged. that the injury was caused “by reason of the drawhead and coupling pin not being suitable for the purpose for which they were; to be used, aud he being ignorant of them.” To this amended petition the statute of limitations was pleaded. It was argued with great force in that case that, as the plaintiff could not recover on the cause of action as stated in his original petition, but: could recover on the cause of action as it was stated in his amended petition, it necessarily followed that the amendment stated a.new and independent cause of action; but the court, speaking by the chief justice, said:

“It is true if tlie amended petition, which may perhaps be treated as a second count in the declaration, bad brought forward a new and independent cans-'; of action, the bar might aptly to it, yet as the transaction set forth in both counts was the same, and the negligence charged in both related to defective; conditions in respect to coupling cars in safety, we are not disposed, by technical construction, to hold that the second count alleged another and different negligence from the first.”

And see. upon (he subject of the right of a court to allow amendments and their effect, Bowden v. Burnham, 19 U. S. App. 448, 8 C. C. A. 248. and 59 Fed. 752; Smith v. Railway Co., 12 U. S. App. 426, 5 C. C. A. 557, and 56 Fed. 458; and Carnegie, Phipps & Co. v. Hulbert, 36 U. S. App. 81-97, 16 C. C. A. 498, and 70 Fed. 209.

In Cobb v. Railroad Co., 38 Iowa, 601, 626, 627, it is said:

“Tlie filing of an amendment setting up the canse of action in another form is not the commencement of the suit; it is not the bringing of another action. The commencement of the suit, and not the filing of the petition, or any amendment thereof, terminates the running of the statute. Suppose an action he brought to recover money alleged to be due on a written contract for goods sold and delivered. After the commencement of the action, plaintiff amends his petition showing- the contract to be verbal. There being no- doubt that the cause of action set up in the original and amended petitions are ¡he same, no one can claim that the commencement of the action was the filing of the amended petition, and that the statute of limitations runs to that time.”

In McKeighan v. Hopkins, 19 Neb. 33, 26 N. W. 614, an action of ejectment was by amendment changed to a bill to redeem, the court saying:

"The Code abolishes the distinction between actions at law and suits in’ equity. If, therefore, an action at law is brought to recover a tract of land, the court certainly has the power to permit the plaintiff to amend his petition, so that he may recover the same, either at law or in equity. The right to be enforced is the same in either case, the recovery of the land, and, so long as the identity of the cause of action is preserved, the petition may be amended by stating such facts as the plaintiff may believe to exist in his favor, to entitle him to the relief sought. The restriction in the section above quoted does not refer to the form of the remedy, but the identity of the transaction.”

On the question of limitation, the court in the same case say:

‘The appellee claims, however, that, even if it is conceded that the court had authority to authorize the amendment in question, still the statute o,f limitations would run against the cause of action until the amended petition was filed. In Martin v. Coppock, 4 Neb. 173, it was held that the amendment of a mistake in the name of the plaintiff related back to the date of the service, and this, we think, is the general rule. The cause of action is the same although the relief is sought in a different manner from that in the first petition. This, however, does not change the cause of action, and the statute of limitations ceased to run when the summons which was served on him was issued, or, if the service was constructive, at the date of the first publication of the notice.”

In Lottman v. Barnett, 62 Mo. 159, the original suit was brought against the owner and an architect of a building, charging them with carelessness and negligence in the construction of the same. The suit was dismissed as to the owner, and an amended petition filed alleging that the remaining defendant (the architect) had the entire superintendence and control of the building, and that the disaster was caused by his carelessness as such architect; and it was held that the amendment did not change the plaintiff’s cause of action so as to affect the running of the statute of limitations. The court, speaking by Napton, J., said:

“The defendant was liable on the first petition, as he was held to be on the second. The gist of the action was the same in both, to wit, the death of plaintiff’s husband, and by the negligence of the defendant, 'either as proprietor or architect and superintendent of the building. It would require precisely the same evidence to support the action after the amendment as before, nor would it be .an objection that the proofs might not have sustained the original petition, for the object of an amendment is to obviate this variance. Amendments are allowed expressly to save the cause from the statute of limitation, and courts have been liberal in allowing them, when the cause of action is not totally different. Maddock v. Hammet, 7 Term R. 55.”

In Kuhns v. Railway Co., 76 Iowa, 67, 40 N. W. 92, the plaintiff, after the cause had once been reversed by the supreme court, was permitted to amend his petition by adding an additional averment charging a different act of negligence from those set up in the original petition. This amendment was demurred to on the ground that it was a new cause of action and was barred by the statute of limitations. The demurrer was overruled, and this ruling of the lower court was sustained by the supreme court. These cases were cited approvingly, and their doctrine applied bv this court in Smith v. Railway Co., 5 C. C. A. 557, 56 Fed. 527.

In George v. Seed, 101 Mass. 378, the supreme judicial court of Massachusetts, speaking by Ghief Justice Chapman, said:

“The same remark may be made as to the point that the amendment has the effect to repeal the statute of limitations. It is true that if the amendment had been refused, and the plaintiffs had been compelled to become nonsuit and commence a new action, the statute of limitations might be a bar to it. But that fact furnishes no argument against the amendment. In Davenport v. Holland, 2 Cush. 1, an amendment to a petition for review was granted more than a year after final judgment, when a new petition would have been barred by the statute. The amendment was held to he proper. Shaw, O. J., said that it had often been held to be a good reason for granting amendments on terms, Instead of nonsuiting a party, and compelling him to bring a new action, that such action would be barred by the statute of limitations. He also said that the provisions of law allowing amendments are highly remedial, and are construed most liberally to cancel error and mistake, and to advance justice and right.”

The doctrine of this case is reaffirmed by the same court in Sanger v. Newton, 134 Mass. 308, where it is said:

“The fact that the three years within which an original petition could have been filed have elapsed furnishes no ground for refusing the amendment, but rather a reason why it should he allowed, ás otherwise substantial justice will be defeated. George v. Reed, 101 Mass. 378.”

In Van Doren v. Railroad Co., 93 Fed. 260, 271, the suit was brought in the name of Laura L. Van Doren, as administratrix of her deceased husband, and subsequently, and after the statute of limit ations had run against a suit in her name as widow, she applied to the court for leave to amend the declaration by declaring as widow, instead of administratrix, of her deceased husband. The lower court refused to allow the amendment, hut this ruling was reversed by the circuit court of appeals, that court saying:

“Substantial justice requires that such an amendment should be allowed, as a second suit for damages for the death of Henry Yan Ooreu would be barred by the one-year limitation In the Pennsylvania statute.”

The case of Railroad Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct 877, relied on to overturn these authorities, is not at all in point. In that case the original petition was based upon the common law of master and servant, while the amended petition changed the na ture of the claim, and based the action upon a statute of Kansas giving an employé a right of action against a railroad in derogation of the common law, and fixing the period within which such action must be enforced. It is well settled that, in such case, the period allowed for the enforcement of such new right is not a statute of limitations at all, but is a limitation of the liability; in other words, that it is a constituent part of the right itself, and does not relate to the remedy. This question was fully considered by this court in Theroux’s Adm’x v. Railroad Co., 27 U. S. App. 508, 12 C. C. A. 52, and 64 Fed. 84, where Judge Thayer, speaking for the court, said:

“It was said, in substance, by Mr. Chief Justicé Waite in The Harrisburg, supra, that when a statute creates a new legal liability with the right to sue for its enforcement within a given period, and not afterwards, the time within which suit must be brought operates as a limitation of the liability, and not merely as a limitation of the remedy. The same thought was expressed by the supreme court of Ohio in Railway Co. v. Hine, 25 Ohio St. 629, and by the supreme court of Maryland in Eastwood v. Kennedy, 44 Md. 563. In the Ohio case it was said that a proviso contained in a statute creating a new cause of action, which limits the right to sue to two years, is a condition qualifying the right of action and not a mere limitation of the remedy. It must be accepted, therefore, as the established doctrine that, where a statute confers a new right which by the terms of the act is enforceable by suit only within a given period, the period allowed for its enforcement is a constituent part of the liability intended to he created and of the right intended to be conferred. The period prescribed for bringing suit, in such cases, is not like an ordinary statute of limitations, which merely affects the remedy.”

The substantial cause of action was tbe same whether the plaintiff counted upon the breach of the warranty or upon a rescission of the contract for the price and keep of the horse because of the breach of the warranty. The same testimony would support a recovery under either form of the complaint, and the testimony shows that the recovery would have been substantially, if not identically, the- same under either form. To deny a recovery on these facts is to refine away the plain justice and right of the case by reviving the quibbles and technicalities of common-law pleading, which were abolished in Iowa nearly 50 years ago. Judge Shiras, whose familiarity with the Iowa Code and the decisions of the supreme court of that state is well known, held that the action was not barred, and of the soundness of that conclusion there can be no doubt.'