UNITED STATES SUPREME COURT DECISIONS ON-LINE

In an action by an employee of a railroad company against the company, based upon the general law of master and servant, and brought to recover damages for an injury which had happened to the plaintiff in Kansas while on duty there, an amended petition which changes the nature of the claim, and bases it upon a statute of Kansas giving the employee in such a case a right of action against the company in derogation of the general law, is a departure in pleading, and sets up a new cause of action, and the statute of limitations as applied to such new cause of action treats the action as commenced when the amendment was incorporated into the pleadings, and not as begun when the action itself was commenced.

This result is not in any way affected by the fact that the amended petition was filed by consent, as such consent covers only the right to file the amendment, but does not waive defenses thereto when filed.

On the 25th of September, 1885, Otto Wyler, the defendant in error, sued the Union Pacific Railway Company, plaintiff in error, in the circuit court of Jackson County, State of Missouri, to recover damages for a personal injury. The petition alleged that in April, 1883, and for a long time prior thereto, he was employed by the defendant at Wyandotte, Kansas, in repairing locomotives and engines; that at the date stated, the corporation had in its employ other men besides himself, among whom was one Charles B. Kline, who at that time

"was wholly incompetent and unfit for the position which he occupied and the work he performed; that said incompetency was wholly unknown to plaintiff at 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; that at said time and place, plaintiff, at the request of defendant and in the ordinary course of his employment, was engaged in repairing a fire box in one of defendant's locomotives; that

Page 158 U. S. 286

on this particular occasion, plaintiff was, at the request of defendant, assisted in said work by said Kline; that plaintiff and said Kline, while so engaged in repairing said fire box of said locomotive, were in the act of lifting and placing in position the fire dump belonging thereto (which was a part of their said business and employment), said dump being made of iron and of great weight; that while engaged in such business, and without fault on the part of the plaintiff, and through the negligence and mismanagement of defendant in retaining and employing the said Kline after knowing his incompetency, the said heavy iron dump was carelessly and negligently thrown down, and let fall against the plaintiff,"

by reason of which he was injured and damaged to the extent of $25,000, for which judgment was asked.

In October, 1885, the defendant filed a general denial, and on the 16th of November, 1885, removed the cause to the Circuit Court of the United States for the Western District of Missouri. On the 18th of November, 1886, an amended answer was filed, averring that the plaintiff's injury resulted from his own negligence, and pleading in bar of the action a limitation of two years under the laws of the State of Kansas. On the 3d of November, 1887, the plaintiff replied to the amended answer, denying the charge of negligence, and demurred to the third clause thereof, which pleaded the Kansas statute of limitations. On the 5th of January, 1888, the demurrer to the defendant's answer was submitted to the court. On the 23d of May, the defendant amended his answer by inserting in the third clause, which set out the statute of limitations of Kansas, the averment that both parties were residents of that state at the time of the accident, and had continued so up to that date. This amendment was consented to by counsel on condition that the demurrer which had been filed to the first amended answer should be considered as pleaded against the last answer, and that it be submitted. The court sustained the demurrer to so much of the answer as set up the bar of the Kansas statute.

Thereupon consent was filed that the defendant should withdraw its answer and be at liberty to demur to the petition. clubjuris

Page 158 U. S. 287

A general demurrer was then filed. This demurrer was sustained, with leave to amend instanter. On October 30, 1888, the plaintiff filed an amended petition, in which he reiterated his original averments and added thereto the charge that his injury resulted from

"the negligence and mismanagement of the defendant, its agents and employees, and in consequence of the negligence and mismanagement of said Kline."

On the second day of November, 1888, by consent of counsel, plaintiff filed a second amended petition. This restated the averments of the first amended petition, except that it eliminated the charge of incompetency on the part of Kline and the averment of knowledge of such incompetency in the defendant, and rested the cause of action exclusively upon the negligence of Kline, as a fellow servant of the plaintiff, averring that the corporation was liable to plaintiff for injury suffered by him through the negligence of a fellow servant for the reason that a right of action was given in such case by the law of Kansas, where the accident occurred. The language of the petition is as follows:

"That by reason of the premises [the negligence above stated], the plaintiff had and has a cause of action against the defendant under and by virtue of the law of Kansas in such cases made and provided in sec. 1, c. 93, Laws of Kansas of 1874."

On the 3d of November, 1888, the defendant answered the amended petition, first by confessing that the plaintiff was in its employ, and admitting the existence of the Kansas statute, secondly by claiming that the injury suffered was brought about through the plaintiff's own fault, thirdly by asserting that both parties were citizens of the State of Kansas at the time the accident occurred, and had been so ever since, and hence the right to recover was barred by the limitation of two years created by the Kansas law. and fourthly claiming that, as the cause of action alleged in the second amended petition was wholly different from that averred in the original and the first amended petition, the same was barred by a limitation of five years created by the laws of the State of Missouri.

On the 4th of March, 1889, leave was granted to withdraw the foregoing answer and to file a demurrer. On the next clubjuris

Page 158 U. S. 288

day, the parties appeared in open court, and a new amended answer was filed. This averred, in somewhat different phraseology, the defenses already stated, and added a new one, namely, want of jurisdiction. To the third ground of this answer plaintiff demurred, and to the second ground he filed a general denial. His demurrer was sustained on March 6th. On the issues thus made up, the case was twice tried, and the jury failed to agree. In September, 1891, the case was tried for the third time, and resulted in a verdict in favor of the plaintiff for $10,000. After motions for new trial and in arrest of judgment had been overruled, the case was brought here by error.