Freeman v. Central of Ga. Ry. Co.

SIMPSON, J. The original complaint in this case was filed October 8, 1899, containing five counts, and on [621] appeal this court hold that the first, second, and third charged negligence, and that the fourth and fifth counts charged nothing; that the plea of contributory negligence was sustained, and the defendant was entitled to the affirmative charge. — C. of C. R. R. Co. v. Freeman, 134 Ala. 354, 32 South. 778. On October 25, 1902, the fourth count was amended by striking out the portion of it which had been condemned and leaving a simple count charging willfulness and wantonness on the part of the defendant, and at the same time adding the sixth count; and on the second appeal this court held that both the fourth and sixth counts were in trespass, that they charged willfulness or wantonness on the part of the defendant, that to sustain them it was necessary to prove “actual participation on the part of the defendant in the damnifying act,” and, there being “no such proof, nor any evidence tending to establish such participation,” the general affirmative charge should have been given, on the request of the defendant, on said fourth and sixth counts. — Central of Ga. R. Co. v. Freeman, 140 Ala. 581, 37 South. 387. On the trial now appealed from the fourth count now remains as it was when last before this court, and the sixth count was amended so as to make a count in case based on the willfulness or wantonness of defendant’s servants. The defendant’s plea numbered 11 to these counts is “that the said plaintiff ought not to have and maintain the aforesaid action therein alleged against it, because it says that the said several supposed causes of action in said counts mentioned did not, nor did any or either of them, accrue at any time within one year next before the filing of sáid count against the said defendant in manner and form as the said plaintiff hath in said counts complained against it, the said defendant.” To this plea the plaintiff interposed a demurrer and assign [622] ed the following causes: “(1) The count as amended relates back to the original filing of the complaint. (2) Said plea does not aver or show that the cause of action did not accrue within one year next before the filing of the original complaint in this case. (8) The statute of limitations of one year does not apply to said cause of action. (4) The complaint, as originally filed, contained a count or counts attempting to set up wantonness. (5) The complaint as originally filed contained the same cause of action averred in said count as amended.” An additional cause is applied to the sixth count alone, that it “sets up the same cause of action attempted to be set up in one of the counts of the original complaint.” The count overruled the demurrer to the eleventh plea and on written request gave the general affirmative charge in favor of the defendant, and the assignments of error are to the action of the court in these two matters. The fourth count as amended is in trespass, and the plea of the statute of limitations of one year was no answer to it. There was no evidence to sustain it, and in view of the previous history of this case and the full evidence as to the accident we cannot suppose that any evidence existed to sustain this count. Consequently, as further shown in this opinion, the overruling of the demurrer to plea 11 was error without injury. Up to the time of the final amendment of the sixth count of the complaint, which charges willful, wanton, or reckless conduct on the part of the servants of the defendant, the allegations of the complaint had been either such as to set up simple negligence, or willful, wanton, or reckless conduct on the part of the defendant itself; said count being in trespass. The amendment places the claim for damages on the willful, wanton, or reckless conduct of the servant of the defendant, being a count in case. This sets up a new claim or different [623] ground of liability from that declared on in the original complaint, “requiring different evidence from that which would have been necessary under the original complaint.” Hence it does not relate back to the date of the original complaint, and in determining whether the action is barred by the statute of limitations the time should be calculated up to the date of the filing of said amendment. In other words, the cause of action set up in the sixth count as amended ivas not within the lis pendens, and there was no error in overruling the demurrer of plaintiff to the eleventh plea in so far as the assignments 1, 2, 4, and 5 are concerned. — Nelson v. First National Bank of Montgomery, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52; A. G. S R. R. Co. v. Smith, 81 Ala. 229, 1 South. 723. The case of Cen. of Ga. Ry. v. Foshee, 125 Ala. 201, 27 South. 1006, was dealing only with the right of amendment, and not with the question of its relation back to the filing of the complaint. The distinction is clearly drawn in the Nelson Case, supra. On the question of the general charge, which -was given, in favor of the defendant, the plaintiffs own testimony shows that he was guilty of contributory negligence, and this is practically admitted; but the claim is that the defendant is liable, under the fourth and sixth counts as amended, for the willfulness, wantonness, etc., in running into a thickly populated locality where people were liable to be on the track, etc. Without entering into the evidence in detail on this question, the fourth count is in trespass, and charges the willfulness, etc., against the defendant, and there is not a particle of proof to sustain it; and as to the sixth count the plea of the statute of limitations of one year was applicable, and the evidence shows that the action was barred at the time the amended count was filed. So, with the record as it was, and on the evidence as presented, there was no er [624] ror in the giving of the general charge in favor of the defendant. The judgment of the court is affirmed. Weakley, C. J., and Haralson and Dowdell, JJ., concur.