Raley v. Evansville Gas & Electric Light Co.

Comstock, J. This action was originally brought on February 14, 1903, in the Superior Court of Vanderburgh County, by appellant against appellee for personal injuries. Upon change of venue the case was tried in the Gibson Circuit Court, resulting in a judgment in favor of appellant. Prom this judgment the appellee herein appealed to the Appellate Court, where the judgment was reversed (Evansville Gas, etc., Co. v. Raley [1906], 38 Ind. App. 342). On January 10, 1907, appellant herein filed his amended complaint in the court below. A demurrer for want of facts to the same was overruled, and appellee filed its answer thereto in three paragraphs; the second and third setting up the statute of limitations. Appellant’s demurrer was sustained to the second and overruled as to said third paragraph, and refusing to plead further, judgment was given against him. The only question sought to be raised upon this appeal is the action of the court in overruling appellant’s demurrer to said third paragraph of answer. Said answer sets out a copy of the original complaint, ■which is, in substance, as follows': That on August 22, 1902, and prior thereto, defendant corporation maintained an electric light and power plant in the city of Evansville, and controlled certain lines of wires suspended upon poles in the streets. These wires were used for furnishing light and power in said city, and for that purpose powerful currents of electricity, dangerous to human life, were passed through them. It is averred that defendant knew, when these wires were strung on the poles, that it would be necessary for its linemen to work in and [652] about the care and repair of said wires and poles, and that it was the duty of defendant to keep the wires safely and completely insulated, so that linemen, lawfully about them, should not be injured by contact therewith, but that defendant disregarded its duty, and negligently maintained said wires, and negligently failed to protect and cover said wires with safe and sufficient insulating material, and negligently permitted the covering used thereon to become defective and insufficient to render them safe to persons coming in contact therewith, all of which was unknown to plaintiff prior to his injury. It is further alleged that plaintiff was working as an employe of the defendant as a lineman, on the date mentioned, under the direction of a superior officer of defendant, and was directed by said officer to ascend a certain pole, at the intersection of two streets in said city, for the purpose of untying the wires from a glass insulator, preparatory to transferring them to a new pole, to be erected in the place of the old one; that defendant had negligently permitted the old pole to become defective, doty and rotten, to such an extent that it was dangerous for the linemen to climb or stand on it, all of which was unknown to the plaintiff ; that defendant, long prior to the date mentioned, knew, or, by the exercise of proper diligence, should have known, that the electric light wires were insufficiently insulated, and that the pole was defective, doty, rotten and dangerous; that plaintiff ascended the pole in obedience to the order given, and while supporting himself thereon in the usual way, by sinking his climbing-spurs into the body of the pole, and while engaged in the act of carrying out his instructions, one of his spurs, by reason of the defective, doty, rotten and dangerous condition of said pole, broke and slipped from its hold, causing plaintiff involuntarily to reach out in an effort to support himself from falling, and to touch and come in contact with said wires, highly charged with electricity, as aforesaid, and by reason and on account of the defective and imperfect insulation thereof, as afore [653] said, he received a current of electricity into his body, whereby he was greatly shocked, wounded, etc. After setting out the original complaint, said answer continues: “And defendant says that the cause of action described and set forth in plaintiff’s amended complaint herein is entirely and wholly different from the cause of action described in the foregoing original complaint, * * * and that the cause of action set forth in said amended complaint * * * did not accrue to the plaintiff within two years next before the filing of said amended complaint. ’ ’ In the amended complaint allegations as to the defective condition of the pole are omitted, and there, for the first time, it is charged “that on or about August —, 1902, plaintiff entered into a contract of employment as lineman for the defendant, by and through the general superintendent of defendant; that by the terms of said contract of employment it was fully agreed and understood that plaintiff, in the discharge of his duties under said employment, at no time, would be required to handle or work with wires while the same were charged with a heavy or dangerous current of electricity; and that at any time when plaintiff would be required to handle or work with such wires of defendant, as were usually charged with a heavy or dangerous current of electricity, the current of electricity would be turned off by defendant while such work was being performed and until the same was completed; that plaintiff at that time, and at the time of the injuries hereinafter complained of, was wholly inexperienced in working with or handling wires while charged with a heavy or dangerous current of electricity, but relying wholly upon the representations and agreements of the defendant, as aforesaid, entered upon the discharge of his duties under said employment, and continued in such employment until August 22, 1902; * * * that at said time, and at the time of the happening of the. injuries hereinafter mentioned, said defendant, in viola [654] tion of the terms of said contract of employment, had wholly omitted, neglected and failed to turn off the powerful and dangerous current of electricity then passing through said wires, which fact was, at and prior to said time, to this plaintiff wholly unknown.” Outside of the omission before stated, and the foregoing additional averments set out in the amended complaint, it and the original contain substantially the same allegations. 1. “Generally speaking, an amendment to a complaint has relation to the time the complaint was filed, but this never occurs when such amendment sets up a title not previously asserted, and which involves the question of the statute of limitations.” Lagow v. Neilson (1858), 10 Ind. 183, 185. See, also, Blake v. Minkner (1894), 136 Ind. 418, 422. If the amended complaint states a cause of action different from that in the original complaint, the judgment must be affirmed. 2. A cause of action may be said to be composed of the right of plaintiff and the obligation, duty or wrong of defendant. Anderson’s Law Diet.- The matter is tersely stated in the case of Reeder v. Sayre (1877), 70 N. Y. 180, 26 Am. Rep. 567, as follows: “The real limitation to it seems to be that the amendment shall not bring in a new cause of action. ’ ’ 3. The following tests have been applied: It has been held that an amended complaint sets up a new cause of action (1) where the new allegation deprives the defendant of any defense he had to the original action; (2) where the evidence that would have proved the original complaint will not prove the new; (3) where the new allegations, if in reply, would have amounted to a departure; (4) where the amended complaint sets up a title not before asserted; and (5) where a judgment on the first complaint would be no bar to a judgment on the second or amended complaint. [655] 4. Applying these tests to the averments of the answer before us, whichever conclusion might be reached would be supported by respectable authorities. The cause of action set out in the original complaint was the injury of appellant by the wrongful act or omission of appellee, to wit, the failure properly to insulate- its wires. The amended complaint is between the same parties, relates to the same general transaction, the same place, charges the same injury to appellant, and the same neglect properly to insulate its wires. There is added to the charge of failure to insulate an affirmative act of negligence. Such additional charge is not the introduction of a new cause of action. Cleveland, etc., R. Co. v. Bergschicker (1904), 162 Ind. 108; Central, etc., R. Co. v. Foshee (1899), 125 Ala. 199, 27 South. 1006. It is an additional charge of negligence. The facts alleged in either complaint would bar another action for the same cause. This is sufficient. Jeffersonville, etc., R. Co. v. Hendricks (1872), 41 Ind. 48; Terre Haute, etc., R. Co. v. Zehner (1906), 166 Ind. 149; Indianapolis St. R. Co. v. Fearnaught (1907), 40 Ind. App. 333, and cases cited; Mitchelltree School Tp. v. Carnahan (1908), 42 Ind. App. 473. It follows that the court erred in overruling appellant’s demurrer to the third paragraph of answer. Judgment reversed, with instructions to sustain appellant’s demurrer to said answer and for further proceedings in accordance with this opinion.