Broom v. Southern Railway

Holden, J., deivered the opinion of the court. On June 19, 1915, the appellant, Mrs. Ida K. Broom, as administratrix of the estate of her deceased husband, J ohn W. Broom, instituted suit against the appellee railway company in the circuit court of Lowndes county on behalf of herself, as widow and for the surviving children, who were named in the declaration. The declaration states a cause of action under the state law. Acts 1914, page 281. 'The declaration complains that the husband of appellant was an engineer in the employ of the appellee railway •company, and while on duty was injured through the negligence of a fellow servant, from which injury he died. It also states that the appellee railway company is an intrastate railroad, and proceeds upon the theory of recovery of damages under the state law. It appears that the injury to the deceased engineer occurred in June, 1913, and he died in August, 1913. On September 16, 1915, the appellee railway company gave notice that it would prove that at the time of his injury Mr. Broom was an employee of the railway company and was engaged in interstate commerce. Following this notice, on September 20, 1915, the appellant by leave of court amended her declaration by alleging that, at the time Mr. Broom received the injury which resulted in his death, he and the appellee railway company were engaged in interstate commerce. To this amended declaration the appellee railway company pleaded the statute of [507] limitations of two years under the federal act, to which plea the appellant demurred, and when the court overruled the demurrer, the appellant declined to plead further, and prosecuted this appeal here. The only question presented for our review and decision is whether the cause of action under the amended declaration was barred by the two-year statute of limitations under the federal Employers ’ Liability Act. It will he observed here that the only amendment made to the original declaration was the allegation that the injury occurred while the parties were engaged in interstate commerce, instead of intrastate commerce. This amendment did not present a new or different statement of facts upon which the action was based, but merely amended the declaration, so as tó come within the operation of the federal Employers’ Liability Act, instead of the state law. The allegations contained in the original declaration did not support a cause of action under the federal law, but the amendment is not inconsistent with the purpose and relief originally sought by the declaration. It appears, therefore, that the amendment did not constitute a new cause of action, inconsistent with that set forth in the original declaration. The' amendment was properly allowed by the lower court. It was not the beginning of a new action; but the suit should be treated .as having been commenced at the time of the filing of the •original declaration, which was done within the two years .allowed in such cases. The demurrer to the plea of statute of limitation filed by the appellee in the lower court should have been sustained; and for this error the judgment of the lower court is reversed and the case remanded. Curtice v. Railway Co., 162 Wis. 421, 156 N. W. 484, 1916D, p. 316; M., K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. Reversed and remanded.