Hafemann v. Seymer

Eschweiler, J. Plaintiff contends that, inasmuch as one body of facts is found common to all of the pleadings, there is no such substantial change in the second amended complaint from the cause or causes of action asserted and relied upon by the plaintiff in the original and first amended complaint, or such a departure from those prior pleadings, as 'will properly sustain the demurrer under the statute of limitations as to four of the several causes of action set forth in such second amended complaint, presented more than four years after the death of Mrs. Hafemann. It is, however, as firmly settled as a long line of consistent decisions can make it. that in this jurisdiction, whatever may be the rulings elsewhere, there is a vital and substantial distinction between an action predicated upon assertions that a defendant has breached the duty he owes of ordinary care to an injured person and a cause of action predicated upon the assertions that the defendant, in his conduct causing the injury, has done that which is designated as gross negligence. As applied here under one set of allegations the defendant is charged with having failed in his duty as phy'sician and surgeon to exercise the ordinary skill and care required of one such; to support such charge requires proof as to what such standard of care and skill is; it may properly be defended against by evidence of the same nature; it requires but a preponderance of the evidence to uphold it; and it is subject to the defense [180] of contributory negligence. Again, however, and ostensibly, at least as giving rise to a different cause of action, are allegations that there was a wrongful and unlawful purpose and intent to violate a penal statute of the state; that there was such violation, causing the injuries complained of; that the particular acts charged were done recklessly, unlawfully, wantonly, and in total disregard of safety and life, which is quite another thing, and requiring a separate and distinct standard of measurement; a higher quantity of proof, viz.: clear and satisfactory, as in all civil actions involving fraud or the violation of a criminal statute (Peterson v. Lemke, 159 Wis. 353, 150 N. W. 481; O’Brien v. Fred Kroner H. Co. 175 Wis. 238, 185 N. W. 205; Will of Boardman, 178 Wis. 517, 519, 190 N. W. 355; Estate of Laper, 181 Wis. 443, 447, 195 N. W. 323; Will of Emerson, 183 Wis. 437, 445, 198 N. W. 441) ; and does not permit the defense of contributory negligence. That they may be both alleged in the same complaint (Lemma v. Searle, 153 Wis. 24, 36, 140 N. W. 65), or under our rules permitting liberal amendments, there may be, at proper times, an amendment from one to the other, does not in any way affect the substantial distinction held to exist between them. This subject has been so fully dwelt upon and determined in our prior decisions that we shall do no more than cite the following for reference: Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 485, 128 N. W. 265; Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 423, 128 N. W. 273; Willard v. C. & N. W. R. Co. 150 Wis. 234, 240, 136 N. W. 646; Jorgenson v. C. & N. W. R. Co. 153 Wis. 108, 116, 140 N. W. 1088; Bentson v. Brown, 186 Wis. 629, 633, 203 N. W. 380, 38 A. L. R. 1417. As appears from the summary of. the pleadings in the above statement of facts, the original complaint contained the allegations which would support a cause of action for damages arising out of defendant’s, alleged lack of ordinary [181] care and skill, or, as it is sometimes called, one for ordinary-negligence; it also contained allegations appropriate only to, and sufficient to support, a cause of action arising, out of gross negligence as these two causes of action are differentiated under our decisions and the rule above stated. The first amended complaint, however, presenting then, for the first time, the interest or right of the estate of the deceased, is barren of allegations which would indicate an intention to plead or rely upon any claim of gross negligence; it is a pleading appropriate only to a cause of action based upon defendant’s breach of duty to exercise ordinary care and skill as a medical man. No question is raised, nor could one successfully be urged, but that the substitution of this first amended complaint in its entirety for .the original complaint in its entirety causes the latter to drop out of thé case for all purposes, except as it may be used as an admission as to facts therein recited, if so desired by the adversary. Schultz v. Culbertson, 125 Wis. 169, 171, 103 N. W. 234; Schoette v. Drake, 139 Wis. 18, 22, 120 N. W. 393; Watkins v. Sims, 81 Fla. 730, 739, 88 South. 764; Wende v. Chicago City R. Co. 271 Ill. 437, 442, 111 N. E. 275, Ann. Cas. 1918 A, 222; 21 Ruling Case Law, 587, 588. Upon the substitution, therefore, of the first amended complaint the original complaint and all therein charging a cause of action for gross negligence was and were no longer in existence, and the action as it then stood, at plaintiff’s own election, must be stamped as being from its commencement one for ordinary negligence only, as it became then characterized by plaintiff himself by one of the most solemn admissions known to the law, namely, a verified pleading under advice of counsel. The action by that time had, by plaintiff’s own election, lost all qualities of an action for gross negligence. This character of the action as one for ordinary negli [182] gence as distinguished from one for gross negligence then continued until more than four years1 had elapsed from the death of Mrs. Plafemann. By the second amended complaint the plaintiff now clearly and distinctly sets forth a set of causes of action for gross negligence and reasserts and continues the causes of action, theretofore asserted, based upon ordinary negligence. The present assertion of gross negligence must be considered as though now for the first time asserted and subject to the attack made upon it by the demurrer asserting the statute of limitations. To hold otherwise would be to let a party and his pleader blow hot and cold with the same breath. The primary purpose of pleadings is of course to apprise one’s adversary and the court as to the nature of the claim or defense, and such primary purpose should still be preserved, no' matter how liberal may be the 'rule established by statute or decisions as to construction and •amendment of pleadings and procedure'. Here' plaintiff, exercising the right liberally extended to him to amend during the litigation, deliberately elected to withdraw from the consideration of the court, while the statute of limitations was still running, a cause of action for gross negligence which had been clearly and distinctly asserted in the first complaint, and he should be now held bound by such deliberate action. There being, therefore, in effect the assertion of a mew and'separate cause of action, namely, one for gross negligence, set' up in the four several causes' of action in the second amended complaint, such were property subject to the plea of the statute of limitations, and the ruling supporting the demurrer on that ground is squarely within the prior holding of this court in Meinshausen v. A. Gettelman B. Co. 133 Wis. 95, 101, 113 N. W. 408; and which is controlling here. See, also, 21 Ruling Case Law, 586; [183] Andrews v. Marsden, 278 Pa. St. 56, 122 Atl. 171, 29 A. L. R. 636. Cases holding as do those relied upon by plaintiff on this appeal, that a complaint alleging facts upon which a cause of action may properly be asserted either under the laws of a state or the federal laws may be properly amended after the federal statute of limitations has run by the mere addition of words to the original complaint to the effect that both parties were engaged in interstate commerce at the time of the transaction in question, we deem not in point or controlling in that regard here; such,, for instance, as Curtice v. C. & N. W. R. Co. 162 Wis. 421, 425, 156 N. W. 484 S. C. again in 166 Wis. 594, 166 N. W. 444),. in which-the defendant itself asserted in its answer prior to the amendment the fact of the transaction being in interstate commerce; or Seaboard A. L. R. Co. v. Renn, 241 U. S. 290, 293, 36 Sup. Ct. 567, recognizing that if an amendment merely expands or amplifies what is already asserted it is not affected by the intervening lapse of time; but where it interposes a new or different cause of action it cannot arrest the running of the statute. See, also, N. Y. Cent. & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 Sup. Ct. 122; Nash v. M. & St. L. R. Co. 141 Minn. 148, 169 N. W. 540. Nor is Bruheim v. Stratton, 145 Wis. 271, 129 N. W. 1092, involving a trespass, in point. The plaintiff’s assertion, therefore, of .causes of action based upon charges of gross negligence were properly subject to the plea of the bar of the statute as presented by the demurrer. By the Court. — Order affirmed.