Gregory v. Wabash

Ellison, J. This action involves a construction of ■section 3060, Revised Statutes. That section permits amendments, on appeal to the circuit court, to supply any deficiency or omission therein, when, by such amendment, substantial justice will be promoted; “but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.” What was intended to be embraced in the original cause of action must be gleaned from the face of the statement. The court cannot inquire what was the private intent of the party, but can only look to the paper to gather the intention. The statement may show on its face that the plaintiff intended to bring an action under section 809 of the statute, but has omitted some averment necessary to make the case. In such case he may amend. As an instance, in the case of Johnson v. Railway Company (76 Mo. 553), we find the following statement: “St. Louis, Kansas City & Northern Railway Company, Dr. to S. W. Johnson. “To killing one cow by your cars, in Lathrop township, Clinton county, Missouri, on your railroad, on or about the 24th day of November, 1878, at a point on said railway where said road was not enclosed by a fence as required by law. Damages, $27.5( ” There, it is evident from the paper, the plaintiff aimed to sue under section 43, now 809, but he omits es [452] sential averments to bring it properly under the section. If section 3060 had been in force when that action originated, I have no doubt the supreme court would have held the amendment was allowable. In the cases of King v. Railway Company (79 Mo. 328), and Dryden v. Smith (79 Mo. 525), cited by plaintiff, each clearly indicated. on their face what was intended, and an amendment, for that reason, was allowed. In this case, however, there is nothing to show that the plaintiff intended to bring his action under the double damage section. There is nothing in the statement which would go to show he knew there was such a statute. Neither is there anything to indicate that he intended to bring it under section 2124. No attempt is made to set out a cause of action under that section. None of the essentials required by Quick v. Railway Company (31 Mo. 400), Russell v. Railway Company (83 Mo. 507), and Clarkson v. Railway Company (84Mo. 583), are essayed. He was wronged, and, perhaps, knew by the common law of the land he had a remedy, and was endeavoring to assert it. And his statement is at common law, and is sufficiently full as such under the opinion in the case of Menter v. Railway Company (82 Mo. 128). The amendment made, however, changes the cause of action from one at common law to the statutory action for double damages. This is not permissible, under repeated rulings of the supreme court, both before and since the case of Hansberger v. Railway Company (43 Mo. 196). Notwithstanding the liberality of amendment conferred by section 3060, the provision, section 3058, requiring a trial of the same cause of action, and none other, on appeal, remains. The judgment will be reversed and the cause remanded. All concur.