City Council of Sheffield v. Harris

BRICKELL, C. J. 1. On the former appeal in this case (101 Ala. 564) we held that if there was error in overruling the demurrers to the first and second counts of the complaint — as to which we expressed no opinion— it was error without injury. The same observation applies on the present appeal. The court charged, as shown by the bill of exceptions, that the plaintiff was not entitled to recover under either of those counts. 2. The trial was had on the third count, which, on the former appeal, we held sufficient on demurrer. The sole question open to review, is presented by the bill of exceptions in connection with the plea of the statute of 617 limitations of one year. It appears that the injuries complained of were received On the *16th day of April, 1889, and suit was brought within less than one year thereafter. The complaint originally consisted of two counts. The third count, allowed by way of amendment, was not filed until the 24th day of March, 1892. If the effect of this count was to introduce a new cause of action, the bar of the statute was complete. — Code of 1886, § 2619, sub-div. 6 ; O’Kief v. M. & C. R. R. Co., 99 Ala. 524. But if the count merely varies the allegations as to matters already in issue, a new cause of action is not introduced, and it relates back to the commencement of the suit. — Bradford v. Edwards, 32 Ala. 628; Ala. Gr. So. R. R. Co. v. Arnold, 80 Ala. 600; West. Un. Tel. Co. v. Way, 83 Ala. 542 ; Western U. Tel. Co. v. Henderson, 89 Ala. 521. It was alleged, in substance, in the complaint originally filed, that the servants of the defendant, while engaged in getting out gravel for use on the streets, negligently left an unexploded dynamite cartridge buried at the place where they were digging; and that while the plaintiff, who was also a servent, was subsequently working at the same place, the cartridge exploded, inflicting serious injury upon him. It was also alleged that plaintiff “was ordered by said agents, employes or servants of defendant to go to said place * * * and to dig up gravel and * * * that he did, then and there under said orders, proceed to dig up said gravel at said place, under said orders,” &c. We cannot perceive wherein the amended count departs in any material respect from the original counts in stating the time, circumstances or cause of the injury. It did not introduce a new cause of action, and the court did not err in so charging. The judgment must be affirmed.