Colley v. Gate City Coffin Co.

Lumpkin, Justice.

The main errors complained of in the bill of exceptions were the rejection of an amendment offered to the plaintiff’s declaration, and the granting of a nonsuit. It is unnecessary to discuss the assignments of error with reference to the rejection of certain testimony which the plaintiff sought to introduce, because if the amendment to the declaration had been allowed, the court would doubtless have admitted this evidence. The substance of the declaration and of the amendment offered is set forth in the reporter’s statement. The amendment should have been allowed, and the ease should have been submitted to t'he jury. We have not, in deciding this case, paid any attention to the contents of a previous declaration filed by the plaintiff against the same defendant, because that declaration is not properly before this court. It was not introduced in evidence, nor was a copy, of it attached as an exhibit to the present declaration, or its substance set out therein. Therefore, the specification of the former declaration in the bill of exceptions as a part of the record of the present case was improper, and the judge had no authority to recognize or order it to be sent up as a part of such record.

Taking the second declaration, the one now before us, and the amendment offered to it, the first question is, did the amendment set up a new and distinct cause of action, or was it merely an amplification of that contained in the declaration? There can be no doubt that this declaration is very loosely and imperfectly drawn. It would seem that with very slight effort or care the counsel who prepared it might have made it much more clear and satisfactory, and thus have relieved the trial court and this court of the labor and investigation unnecessarily imposed upon them in passing upon its sufficiency. It does, however, state that the plaintiff was an employee of the defendant; that he received serious personal injuries, which resulted from defective machinery and appliances which the employee was using in the line of his duty; that the plaintiff was in no wise to blame, and that the injuries were the result of the gross negligenceof the defendant in improperly and unsafely putting up the shafting, which was a part of the machinery in question. The purpose of the amendment was undoubtedly to amplify, and to some extent vary, the particulars in respect to which the machinery was was defective, and also in respect to the manner in which the injuries were inflicted. It is also quite clear that this amendment related to the same occasion, the same occurrence, and the same injuries referred to in the declaration, and consequently it does not introduce a new and distinct cause of action.

We will now inquire briefly as to the bearing of the statute of limitations upon this case as affects the question of amendment. The declaration having been filed more than two years after the injuries therein complained of, the plaintiff’s right of action is barred, unless the present suit is in fact a renewal of a former one for the same cause of action, and was instituted within six months from the dismissal of the original suit. It will be observed the declaration alleges that the former action was brought to the December term, 1890, of the city court of Atlanta, and was dismissed on the 25th day of March, 1892, and that the present suit, filed May 14th, 1892, was a renewal of the original action. Under section 2932 of the code,the present action was brought in time if, taking together the declaration and the amendment offered to it, they relate to the same cause of action as that for which the first suit was brought. Whether they do or not is a question of fact which could be easily settled by a comparison of the two declarations, but it was no obstacle to the allowance of the amendment that the action would have been barred if the present suit had been delayed until the time the amendment was offered, provided this suit itself was brought in time. Verdery v. Barrett, 89 Ga. 349. See, also, Ala. Great So. Ry. Co. v. Thomas & Sons, 89 Ala. 294, 18 Am. St. Rep. 119, in which it was held that amendments adding new averments of facts more clearly showing the negligence complained of, or otherwise altering the grounds of recovery, or varying the alleged mode in which the defendant had violated its duties, should be allowed; and that such amendments were not subject to the bar of the statute of limitations, if the action was commenced within the time designated by the statute.

As to the effect of the plaintiff’s failure to introduce the record of the former suit, and consequently to prove its existence or character, we will remark that it was incumbent on him to show that in point of fact the present suit was a renewal of the former one. This he could not do without putting the record in evidence, and consequently, but for the error of the court in rejecting the amendment to the declaration, the granting of the non-suit would have been undoubtedly right, on the ground that the plaintiff failed to take his case out of the statute of limitations. This error, however, vitiated the entire trial and its result. By the rejection of this amendment, the plaintiff was cut off from making out his case. "We have already suggested that this ruling deprived him of the benefit of some testimony which he actually sought to introduce, and it may be that it prevented his offering other testimony which might have sustained his action. At any rate, he was entitled to a trial upon his declaration as it would have been with the amendment allowed. He would then have had a full and fair opportunity to get his entire case fairly and squarely before the jury. The judgment granting the nonsuit was necessarily infected with the erroneous refusal to allow the amendment, and therefore it cannot stand. Judgment reversed.