Whitaker v. Magruder

Felton, J.,

dissenting. I do not think that the original petition set up two causes of action. It could not be reasonably construed to be anything but a tort action. Since this is true, the amendment changing the cause of action from a tort action to an action on contract was subject to the objection that it set up a new cause of action. The amendments were allowed subject to demurrer. The demurrer was to the petition as amended (because the amendment was a part of the petition) on the ground that the amendment set up a new cause of action. There was also a general demurrer to the petition as amended. Both these demurrers were properly sustained. With the amendment stricken, as it should have been, there was no cause of action, because the petition showed on its face that the only cause of action upon which plaintiff could rely was the award. The ruling in Laslie v. Cragg Lumber Co., cited in the majority opinion, is not controlling here, for the reason that in that case there was no demurrer to the amendment itself on the ground that it set up a new cause of action. There was therefore no objection to the amendment alone. The whole objection was to the petition as amended, as a whole. In this case the demurrer to the amendment was good, and, with the amendment stricken,' the general demurrer to the petition as sought to be amended was good. That one ruling covered both is immaterial. To rule otherwise as to this point is to rule that the allowance of an amendment subject to demurrer is merely an idle gesture and utterly meaningless. The purpose of such an order is to make the amendment a part of tbe.record, and to give opportunity to demur rather than object to the amendment before it is allowed.