MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
It was claimed at bar that the demurrer filed instead of being to the last answer, was to the first amended answer, and therefore that it was addressed to the third ground therein set out, that is to say, the plea of limitation under the Kansas statute, and that the general denial, instead of being addressed to the second ground in the last amended answer, applied to the second ground in the first amended answer, which averred negligence on the part of the plaintiff. The record does not support this contention, although it indicates that the pleader intended that the demurrer and the denial should have that effect, but mistakenly applied them to the last amended answer. The controversy on this point, however, is immaterial in the view of the conclusions which we have reached.
The statute law of Kansas provides as follows: "Every railroad company organized or doing business in this State
The occurrence for which the plaintiff seeks to recover damages happened in the State of Kansas in April, 1883. The first petition was filed in the state court of Missouri on September 25, 1885, that is to say, two years and five months after the injury. Actions for damages for personal injury, not arising from contract, are barred by the general law of Kansas after a period of two years. General Statutes of Kansas, 1868, art. 3, c. 80. The first amended petition was filed October 30, 1888, and the second amended petition November 2, 1888. At least five years and six months therefore intervened between the occurrence which caused the damage and the filing of the second amended petition. The statute law of Missouri bars actions on account of personal injury in five years. Rev. Stat. Missouri, 1889, vol. 2, §§ 6773-6775. The question of the operation of the statutes of limitation of Kansas and Missouri, upon the right of action here asserted, lies, therefore, at the very threshold of the case. It is an elementary rule that limitations are governed by the law of the forum, and not by the law of the place where the event happened, which gave rise to the suit. This is not denied, but it is argued that the Kansas statute operates in this case as a bar to the action in the court of Missouri, because of circumstances which make the case an exception to this general rule. It is also contended that the five-year limitation of the law of Missouri bars the action, and this proposition is based upon the claim that the second amended petition propounded an entirely new and distinct cause of action.
Before considering the limitation which it is asserted results from the Kansas statute, we will determine whether the action is barred by the law of Missouri, because if so, it will be unnecessary to decide whether the Kansas statute has an extra-territorial effect. The decision as to the application of the Missouri law involves, first, the ascertainment of whether the amended petition presented a new cause of action. The
Coke upon Littleton, 304 a, says: "When a man in his former plea pleadeth an estate made by the common law, in the second plea regularly he shall not make it good by an act of Parliament. So when in his former plea he intituleth himselfe generally by the common law, in his second plea he shall not enable himselfe by a custome, but should have pleaded it first."
Comyn's Digest, "Pleader," (F. 8,) states the same rule, and gives the following illustrations of departure:
"In debt on bond by sheriff against his bailiff to pay him 20d. for every defendant's name in every warrant in mesne process, defendant pleads he had paid it, plaintiff replies that he had not paid it for A; defendant rejoins Stat. 23 H. 6, and 3 G. it is a departure; for pleading he has had and rejoining he ought not to pay; and for pleading common law plea, and rejoining a statute. Balantine v. Irwin, M. 4 G. 2, C.B. Fort. 368.
"So, if a man avows, for that A being seized in fee granted to him a rent, and the defendant pleads, nothing in the tenements at the time of the grant, and the plaintiff rejoins that A was cestuy que use in fee, which use is now executed by the statute of uses; this is a departure." Pl. Com. 105 b.
Chitty on Pleading, 1, pp. 674, 675, states the principle as follows: "A departure may be either in the substance of the action or defence, or the law on which it is founded; as if a
Stephen on Pleading, pp. 412, 413, thus elucidates the point: "These, it will be observed, are cases in which the party deserts the ground, in point of fact, that he had first taken. But it is also [a] departure, if he puts the same facts on a new ground in point of law; as if he relies on the effect of the common law, in his declarations, and on a custom in his replication; or on the effect of the common law in his plea, and a statute in his rejoinder."
Gould on Pleadings, pp. 423, 424, says:
"When the matter, first alleged as the ground of action or defence, is pleaded as at common law, any subsequent pleading by the same party, supporting it by a particular custom, is a departure."
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"Again, a declaration or plea, asserting a right at common law, is not fortified by the subsequent allegation of a right created by statute. If, therefore, to an action of trespass, laid in common form, for taking the plaintiff's cattle, the defendant justifies the taking of them damage feasant, by distress; and the plaintiff replies, that the defendant drove them out of the county, (which is not actionable by the common law, though made so by the statute 52 H. 3, and 1 and 2 Ph. & M. c. 12,) the replication is a departure, for the same reason as in the last case. The plaintiff in this case should have founded his action upon the statutes."
Saunders on Pleading and Evidence, pp. 806, 807, thus supports these authorities: "A departure in pleading is said to be when a party quits or departs from the case or defence which he has first made and has recourse to another; it is when his replication or rejoinder contains matter not pursuant to the declaration or plea, and which does not support and fortify it. A departure may be either in the substance of the action or defence, or the law on which it is founded."
The courts have, by their decisions, made application of these principles to changes in the facts averred or law relied
An action of assumpsit was changed by amendment into an action of debt; the conclusion was that the amendment was a new cause of action. Crofford v. Cothran, 2 Sneed, 492. At common law no action lies in favor of one person for the death of another; a statute allowed such an action to be brought in the name of a personal representative; by mistake an action of this kind was brought in the name of the wife of a person who had been killed; it was amended so as to make the personal representative the nominal plaintiff; Held, that it was a new cause of action. Flatley v. M. & C. Railroad, 9 Heiskell, 230. A party filed a bill in equity against a corporation without alleging its dissolution, etc., and that he was without remedy at law; after he amended so as to insert all the necessary allegations to give equity jurisdiction; Held that this also was a new cause of action. Dudley v. Price, 10 B. Mon. 54. A bill was filed for the reconveyance of land only, and an amendment referred to certain slaves; held, the allegations concerning the latter were another cause. Christmas v. Mitchell, 3 Iredell, 535.
In Georgia the doctrine has been applied to the very condition of the pleadings here before us. There the court said:
Other applications of the general principle may be found in the cases of Bower v. Thomas, 69 Georgia, 47; Vance v. Thompson, 1 Sneed, 321; Railroad v. Foster, 10 Lea, 351; Thomas v. Insurance Co., 108 Illinois, 91; Robertson v. McIlhenny, 59 Texas, 615; Martin v. Young, 85 N.C. 156; Guild v. Parker, 43 N.J. Law, 430; Hiatt v. Auld, 11 Kansas, 176; Rolling Mill v. Monka, 107 Illinois, 340.
The first petition manifestly proceeded exclusively on that part of the general rule which holds the master liable who with knowledge employs or retains an incompetent servant. It made no reference to the Kansas statute, and did not directly aver negligence on the part of the fellow-servant, except in so far as this might be inferred from the averment of his incompetency. The language is "that at the said time Kline was wholly incompetent and unfit for the position he occupied and the work he performed; that said incompetency was wholly unknown to plaintiff at the said time, though well known to defendant, and defendant negligently and wrongfully kept and retained said Kline in its employ with full knowledge of his incompetency." In fact when it charges the cause of the injury, the petition seems to eliminate all pretence of a right to recover, because of the fellow-servant's negligence, as distinguished from his incompetency, by resting the right upon the latter, for it says: "While engaged in such business and without fault on the part of the plaintiff
It seems impossible to conceive of language which could more directly rest the cause of action on the general or common law of master and servant. And that this was the reliance is shown by the fact that when a demurrer to the petition was sustained, the amended petition for the first time specifically added to the charge of incompetency of the fellow-servant an unequivocal averment of his negligence. A suit based upon a cause of action alleged to result from the general law of master and servant was not a suit to enforce an exceptional right given by the law of Kansas. If the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow-servant, then the averment of negligence apart from incompetency was a departure from fact to fact, and, therefore, a new cause of action. Be this as it may, as the first petition proceeded under the general law of master and servant, and the second petition asserted a right to recover in derogation of that law, in consequence of the Kansas statute, it was a departure from law to law. This conclusion is strengthened by the fact that in most of the States the laws of other States are treated as foreign laws, which must be pleaded and proven. Sedgwick on Statutory and Constitutional Law, 363; Hempstead v. Reed, 6 Connecticut, 480; Swank v. Hufnagle, 111 Indiana, 453; Root v. Merriweather, 8 Bush, 397. Although this rule is not invariably adhered to, it is part of the law as administered in the State of Missouri. Babcock v. Babcock, 46 Missouri, 243.
The suit here was brought in a Missouri court, and was necessarily controlled by the law of that State.
It is argued, however, that, as all the facts necessary to recovery were averred in the original petition, the subsequent amendment set out no new cause of action in alleging the Kansas statute. If the argument were sound, it would only tend to support the proposition that there was no departure
The amended petition, which averred the statute of Kansas, having asserted a new cause of action, the next question is, was recovery under this petition barred by the Missouri statute of limitations? The general rule is, that an amendment relates back to the time of the filing of the original petition, so that the running of the statute of limitations against the amendment is arrested thereby. But this rule, from its very reason, applies only to an amendment which does not create a new cause of action. The principle is, that, as the running of the
The doctrine on this subject is stated in the case of Sicard v. Davis, 6 Pet. 124. There the plaintiff brought an action of ejectment, in which he laid his demise as having been made by Steven Sicard on January 30, 1815, and at the November term of the court in 1821 he was given leave to amend by laying his demise in the name of the heirs of the original grantee of the lands, Joseph Phillips and others, to whom the land had been conveyed before the execution of the deed under which Sicard acquired his title. This court, speaking through Mr. Chief Justice Marshall, said that "limitations might be pleaded to the second allegation, though not to the first, because the second count in the declaration being on a demise from a different party asserting a different title, was not distinguishable, so far as respects the bar of the act of limitations from a new action."
The text-writers have uniformly recognized this principle. In Wood on Limitations of Actions, p. 14, note 4, it is said: "If, however, a new declaration or complaint is filed, setting up a new cause of action, the statute runs until such new declaration is filed, and may be pleaded thereto."
See also Buswell on Limitations, p. 515. In Mohr v. Lemle, supra, the Alabama court thus speaks:
"The latitude of amendment allowed the plaintiff cannot be permitted to work injustice to the defendant, or to deprive him of any just and rightful defence. The plaintiff may introduce a new cause of action by amendment; but such amendment cannot have relation to the commencement of the suit, so as to avoid the bar of the statute of limitations, if the statute would operate a bar to a new suit commenced for that cause of action, at the time of making the amendment. The whole doctrine of relation rests in a fiction of law, adopted to
So again in the same State, in one of the cases already cited, the court said: "While a new cause of action may be introduced by amendment, the established limitation on the operation of its relation to the commencement of the suit is, that if the amendment introduces new matter or a different cause of action not within the lis pendens, as to which the statute of limitations has operated a bar at the time of making the amendment, it is as available as if the amendment were a new and independent suit." Ala. G.S.R.R. Co. v. Smith, 81 Alabama, 229.
Other applications of the doctrine may be found in the following cases: Toby v. Allen, 3 Kansas, 399; Hiatt v. Auld, 11 Kansas, 176; Rolling Mill v. Monka, 107 Illinois, 340; Crofford v. Cothran, 2 Sneed, 492; Flatley v. M. & C. Railroad, 9 Heiskell, 230; Dudley v. Price's Administrator, 10 B. Mon. 84; Buntin v. C.R.I. & P.R.R., 41 Fed. Rep. 744; A. &. P. Co. v. Laird, 58 Fed. Rep. 760.
Nor do we think this question is in any way affected by the fact that the second amended petition was filed by consent. The consent covered the right to file it, but did not waive the defences thereto when filed. If the interruption to the running of the statute created by the first summons applied only to the cause of action therein set out, it would have required an express renunciation of the benefit of the statute, which had fully operated upon the new cause of action set out in the amended petition — when that petition was filed. In Sicard's case, supra, although the amendment had been filed by leave of court, and was, therefore, a part of the pleadings, it was held that the bar of the statute applied to the new cause of action alleged in the amendment, and the rule there enforced is followed in the other cases cited.