Nashville C. & St. L. Ry. Co. v. Garth

DOWDELL, J. The complaint as originally filed contained three counts. It was subsequently amended by adding four other counts, numbered 4, 5, 6, and 7. In each of tbe three counts of tbe original complaint, in stating tbe cause of action, it is alleged that tbe injury complained of was inflicted by tbe application of direct force — in other words, it is alleged that tbe defendant ran its locomotive and train of cars over or against the'colt which were injured. In each of tbe counts (4, 5, 6, and 7) added by way of amendment it is alleged that [314] tbe injuries to- the colts were caused by their running into a trestle from being frightened by the defendant’s locomotive and cars. On the facts stated in the original complaint, the form of action might be trespass or case, according as to how the- alleged wrong is averred to have been committed, whether intentionally or as the result of negligence. Indeed, the second count of the original complaint avers that the defendant “negligently, willfully, and wantonly” prepelled its engine and cars against the colts; while on the facts stated in the amendment, case, and case only, would lie. It is quite clear that no recovery could be had under counts of the original compaint on evidence which only supported the allegations of the counts subsequently added as amendments as to the manner of the injury, and vice versa. By the amendment a new and different claim or cause of action was introduced, and was open to the defense of the statute of limitations. — Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52; Freeman v. Railroad, 154 Ala. 619, 45 South. 898; Smith Case, 81 Ala. 229, 1 South. 723. The court erred in admitting in evidence, over the defendant’s objection, testimony as to what was the cost of entering the colts for the “futurity stakes,” and as to what was the amount of the “futurity stakes.” This evidence, under the issues, was clearly illegal, and calculated to prejudice the jury unfavorably to the defendant. It may be that on the question of value of the colts it was proper to show that the colts had been entered for “futurity,” but not the cost of such entry, or the value of the “futurity stakes.” The bill of exceptions states that the defendant objected to the tax record of 1903, and the objection was sustained. The ruling was in defendant’s favor from this statement, and, if so, would furnish no ground for [315] exception by the defendant. It may be this is a clerical error; but, however it may be, there was no error in the ruling. It does not appear that the assessment for taxes for that year was given by the plaintiff, or that it included the colts in question. There was an entire absence of evidence showing intentional or wanton injury to the colts, and hence the measure of recoverable damages was the actual damages sustained by the injury to the colts. Written charge No. 2, requested by the defendant, should have been given. Charge 6, also, should have been given. Charge 13, requested by the defendant, was argumentative and of misleading tendency, and for this reason, if for no other, ivas properly refused. For the errors indicated, the judgment is reversed, and the cause remanded. All of the Justices concur in the judgment of reversal, and in what is said in the foregoing opinion, except as to the question of amendment and the statute of limitations; the other Justices holding that the amendment was allowable, and not open to the defense of the statute of limitations, for the reason that the original and amended counts were all in case, and citing Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168. Keversed and remanded. All the Justices concurring.