Summary
In Illinois Central Railroad v. Wales, 177 Miss. 875, 171 So. 536 (1937), it was held that the one year statute of limitations was applicable to the railroad company, a corporation.
Summary of this case from Sears, Roebuck Company v. IngramOpinion
No. 32388.
January 4, 1937. Suggestion of Error Overruled, February 15, 1937.
1. LIBEL AND SLANDER.
Defamation is none the less defamatory merely because it is in the form of a question.
2. LIBEL AND SLANDER.
Form or particular phraseology of defamatory language, whether direct or interrogatory, is not controlling, unless there could be no reasonable difference in opinion or understanding that words are plainly defamatory, and were intended as such, whatever the occasion, and regardless of circumstances under which uttered, but the particular facts and circumstances of each case must control.
3. LIBEL AND SLANDER.
Communications which would otherwise be defamatory are protected as privileged if they are made in good faith in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing punishment to the criminal, and the privilege extends to inquiries by private persons or their agents, in respect to a matter in which they have a direct personal interest.
4. LIBEL AND SLANDER.
Special agents employed by railroads and other large owners of property to inquire into and run down thieves and trespassers are within rule that communications which would otherwise be defamatory are protected as privileged if made in good faith in an inquiry regarding a crime committed and for the purpose of bringing punishment to criminal.
5. PLEADING.
Failure to aver who persons were of whom inquiries were made, in action for slander alleged to have occurred during course of investigation being made by special agent of railroad company, held to require construction against the pleader.
6. LIBEL AND SLANDER.
Declaration alleging plaintiff was employed by railroad, and that railroad charged several tons of brass were stolen from it, and that railroad's special agent in investigating asked divers persons, "Don't you think that Wales (meaning plaintiff) was into that brass stealing?" held insufficient to state a cause of action for slander.
7. LIMITATION OF ACTIONS.
When main facts are set out in the original pleading, and an amendment is made which merely elaborates upon those facts and sets forth additional incidental facts not changing the original picture presented, although those incidental facts may be necessary to the statement of a good cause of action, amendment introduces no new cause in such sense as to let in plea of statute of limitations (Code 1930, sec. 2302).
8. LIMITATION OF ACTIONS.
Where original petition alleged that defamatory words spoken by railroad's special agent were, "Don't you think Wales (meaning plaintiff) was into that brass stealing?" amendment, filed more than one year after alleged cause of action accrued, alleging in addition to original petition that special agent stated "I think they ought to have fired him before," and that statements were made in the presence of another person, held to introduce a new cause of action which was barred by one-year statute of limitations (Code 1930, sec. 2302).
APPEAL from the circuit court of Copiah county. HON. J.F. GUYNES, Judge.
Price, Price McLain, of McComb, McNeil, Stevens Zama and J.H. Garth, both of Hazlehurst, E.C. Craig, of Chicago, Ill., and Burch, Minor McKay, of Memphis, Tenn., for appellants.
The whole theory that a master is liable for the acts of his servant is based upon the doctrine of respondeat superior, which is in turn based upon the old Latin maxim, "qui facit per alium facit per se."
51 C.J. 594.
It seems that there are three tests to be applied when this question arises, a negative answer to either of which will exonerate the master. 1. Was the person committing the wrongful act an authorized agent of the alleged master? 2. If so, was he acting within the scope of his employment, that is, in line with his appointed duties, or in the execution of his employment, when he committed the act? 3. Was the act in the actual performance of his duties?
Courtney v. American Ry. Express Co., 120 S.C. 511, 24 A.L.R. 131; Craft v. Magnolia Stores, 161 Miss. 756, 138 So. 405; Rivers v. Y. M.V.R. Co., 90 Miss. 196, 43 So. 571; Martin Bros. v. Murphree, 132 Miss. 509, 96 So. 961; 6 Labatt on Master Servant, page 6851; N.C. M.R. Co. v. Boyd, 141 Miss. 593; A. V.R. Co. v. Harz, 88 Miss. 681; Southern R. Co. v. Garrett, 136 Miss. 216; Wells v. Robinson Motor Co., 153 Miss. 451; Great Atl. Pac. Tea Co. v. Majure, 167 So. 637; N.O.G.N.R. Co. v. Frazer, 158 Miss. 420; Strickland v. Kress Co., 112 S.E. 30.
A voluntary slander uttered by an employee which had nothing to do with his employment, in which he was not engaged when he spoke, did not subject the employer to liability.
Moore Stave Co. v. Wells, 111 Miss. 796; 5 Thompson on Corporations (2 Ed.), sec. 5441; Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543; Courtney v. American Ry. Exp. Co., 113 S.E. 332, 24 A.L.R. 128; Great A. P. Tea Co. v. Majure, 167 So. 637; Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 168 So. 287.
The court erred in not directing a verdict for the appellant, Illinois Central Railroad Company, on the ground that if the alleged slanderous words were spoken, as set forth in the declaration, Bee was not acting in the line of his appointed duties and in the scope of his employment at the time said words were spoken.
The investigation as to the brass stealing had closed some weeks before the alleged utterances. Bee was investigating the shooting of some negro firemen — an entirely different matter in which Wales was not implicated. Emmett Smith himself testified that on the occasion in question Bee "said to me he was investigating the negro shooting." Under such circumstances Bee, clearly, was not acting on his master's account and could not have had in his mind any interests of his master in speaking the alleged slander.
That the language of slander charged in the original declaration differed from that charged in the amended declaration, on which this judgment rests, is apparent from what has been said. In the original declaration the language charged was, "Don't you think that Wales (meaning plaintiff) was into that brass stealing?" — an inquiry. The language in the amended declaration was this: "Don't you think that Wales (meaning plaintiff) is guilty of that brass stealing? I think they ought to have fired him before." The italicized language is an expression of his own opinion on the subject and virtually charged that Wales was guilty.
An amended declaration charging the slander at a time more than a year before the suit is brought will not be saved from the bar of the statute of limitations by the fact that the original declaration was filed in time if the original declaration set up a different time of utterance.
Underwood v. Smith, 93 Tenn. 688; 36 C.J. 1229, sec. 187; Smith v. Smith, 45 Pa. 403; Hester v. Muller, 107 N.C. 724; Age-Herald Pub. Co. v. Waterman, 66 So. 18.
The filing of original declaration will not save bar of the amended declaration.
It has been universally held that when the original declaration states no cause of action it will not arrest the running of the statute; and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action in reckoning the statutory period of limitations.
37 C.J., page 1078, sec. 516, page 1074, sec. 511, page 1067, sec. 505, and page 1053, sec. 476; Travelers Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Clark v. Gulf, etc., R. Co., 132 Miss. 627, 97 So. 185; Cox v. American, etc., Co., 88 Miss. 88, 40 So. 739.
The following authorities hold that an amendment introducing a new cause of action will not justify a recovery when barred by the statute of limitations:
Kohchwitz v. Healty, 36 Tex. 666; Alessandrelli v. Arbrogast, 209 Fed. 126; Bender v. Penfield, 235 Pa. 58; Coyne v. Lakeside Elec. R. Co., 227 Pa. 496; Blake v. Minkner, 136 Ind. 418; Thompson v. Beeler, 77 P. 100, 69 Kan. 462; Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Buerstetta v. Tecumset, 77 N.W. 1094, 57 Neb. 504; Butt v. Carson, 48 P. 182, 5 Okla. 160; Patillo v. Allen-West Com. Co., 131 Fed. 680; Whalen v. Gordon, 95 Fed. 305; Weston v. Warden, 19 Wend. 648; Hester v. Mullen, 107 N.C. 724; Hansbrough v. Stinnett, 25 Gratt (Va.), 495; Ga. Cent. R. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687; Spotswood v. Dandridge, 4 Hen. M. 139; Todd v. Louisville, etc., R. Co., 68 Fla. 202, 67 So. 41; Jones v. Johnson, 81 Ga. 293, 6 S.E. 181; Cin. Sec. Nat. Bank v. American Bonding Co., 93 Ohio St. 362, 113 N.E. 221; La. Dairy v. N.Y., etc., R. Co., 218 Pa. 261, 67 A. 413; Schultz v. Short, 201 Ill. App. 74; Age-Herald Pub. Co. v. Watterman, 66 So. 16; Irvine v. Barrett, 89 S.E. 904, 119 Va. 587, Ann. Cas. 1917C, 62; Davis v. Union State Bank, 137 Kan. 264; Smith v. Smith, 45 Pa. 403.
Innuendoes cannot supply slander when the words themselves do not.
Irvine v. Barrett, 89 S.E. 904, 119 Va. 587.
If words originally charged are not actionable per se they cannot by amendment be enlarged in their meaning merely by addition of an innuendo. This is applicable to the proposition that the original declaration and bill of particulars did not state a cause of action.
Irvine v. Barrett, 119 Va. 587, 89 S.E. 904, Ann. Cas. 1917C 62; Hansbrough v. Stinnett, 25 Gratt 495; Georgia Central R. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687; Vickers v. Stoneman, 73 Mich. 419, 41 N.W. 495.
Anticipating that appellee will argue that the amended declaration was merely an enlargement or repetition of the slander charged in the original declaration, we cite the following authorities to show that the repetition, especially by the same person, constitutes a separate and distinct cause of action:
Age-Herald Pub. Co. v. Watterman, 66 So. 16, 188 Ala. 272, Ann. Cas. 1916E, 900; Ott v. Murphy, 141 N.W. 463, 160 Iowa 730; Sharp v. Larson, 72 N.W. 961; Jean v. Hennessy, 69 Iowa, 373, 28 N.W. 645; Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 266; No. Chi. Mill Co. v. Monka, 107 Ill. 340; Wende v. Chicago City R. Co., 271 Ill. 437, 111 N.E. 275, Ann. Cas. 1918A 222; Staub v. Van Benthenpen, 36 La. Ann. 467; Cook v. Conners, 215 N.Y. 175, L.R.A. 1916A 1074, Ann. Cas. 1917A 248; Woods v. Pangburn, 75 N.Y. 495; Fisher v. N.Y. Staats-Zeitung, 114 App. Div. 824, 100 N Y Supp. 185; Underwood v. Smith, 93 Tenn. 687; Merchants Ins. Co. v. Buckner, 98 Fed. 222; Elms v. Crane, 118 Me. 261, 107 A. 852; Georgia Central R. Co. v. Sheftall, 118 Ga. 865.
The court erred in overruling the objections of the defendants to the evidence offered by the plaintiff of the mental pain, humiliation and embarrassment suffered by Mrs. Wales, a stranger to this suit.
37 C.J. 96, sec. 530; Dennison v. Daily News Pub. Co., 82 Neb. 675, 118 N.W. 568, 23 L.R.A. (N.S.) 362.
The court erred in overruling the defendants' objections to plaintiff's evidence that he was discharged without cause and that he was denied a reason for his discharge or a hearing and that he was denied a clearance or statement of his record with the company and that his annual pass was cancelled and in permitting the introduction of various letters respecting his pass and discharge.
Railroad Co. v. Ely, 83 Miss. 519, 35 So. 873.
The court erred in sustaining objections made by the plaintiff to the testimony offered by the defendants disclosing a plot, conspiracy or scheme and agreement between the plaintiff and the witness Smith to charge the defendants' representative, Mr. Ogilvie, with having paid the witness Smith the sum of fifty dollars, which was deposited in the Bank of Summit, Mississippi.
Pearson v. State, 167 So. 644; Interstate Co. v. Garnett, 154 Miss. 356; 22 C.J., 321; Com. v. MinSing, 202 Mass. 121, 88 N.E. 918.
The verdict of the jury is contrary to the overwhelming weight of the convincing and credible evidence.
Miss. Power Co. v. Stiglets, 158 So. 907; Shelton v. Underwood, 163 So. 830; Fore v. I.C.R. Co., 160 So. 903, 172 Miss. 451; Spradling v. State, 163 So. 144; Life Casualty Co. v. Parker, 161 So. 465, 173 Miss. 180.
Hugh V. Wall, of Brookhaven, R.L. Bullard, of Hattiesburg, and Williams Hunt and Junior O'Mara, of McComb, for appellee.
It is undisputed that W.D. Bee, co-defendant with the Illinois Central Railroad Company was an employee and servant of the Illinois Central Railroad Company, and his position with the railroad company was that of special agent. His business as special agent was to investigate, among other things, persons, suspected or charged with stealing the property of the railroad company.
It will be noted by the court from a careful reading of the record in this case that the said Bee was acting within the scope of his authority when he went to the Hinds county jail to see E. Smith in regard to the shooting of negro fireman. This, we submit, is admitted by the railroad company.
Richberger v. Express Co., 18 So. 922, 73 Miss. 161; Loper v. Railroad Co., 166 Miss. 79, 145 So. 743; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 261; Walters v. Stonewall Cotton Mills, 101 So. 495, 136 Miss. 361; Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Southern Bell Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Singer Sewing Mach. Co. v. Stockton, 157 So. 366.
The witness Smith, who is the same as E. Smith, which the jury believed, stated that Bee stated to him that if he, Smith, would help convict Jess Wales of the brass stealing, that he, Smith, would go home a free man, and what witness stated in that conversation that the co-defendant, Bee asked him, the witness Smith: "Don't you think Jess Wales is guilty of the brass stealing (meaning the brass stealing at McComb, as alleged in the declaration)" and the witness, Smith, said: "Mr. Wales is not that kind of a man" and then the co-defendant Bee stated: ". . . they ought to have fired him long before now (meaning Wales)."
We submit that the record shows and the jury believed, as shown by the verdict, that the defendant, Bee, was acting within the scope of his authority and was acting for his master, the railroad company, and acting about the business of the railroad company and was promoting the business of the railroad company.
Natchez C. M.R.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Rivers v. Y. M.V.R.R. Co., 90 Miss. 196, 43 So. 571; Martin Bros. v. Murphree, 132 Miss. 509; Manion v. Jewell Tea Co., 160 N.W. 767; Louisiana Oil Corp. v. Renno, 157 So. 705; Union Tea Co. v. Lord, 231 Fed. 390; Ann. Cas. 1918C, 1118; N.O. G.N.R.R. Co. v. Frazer, 158 Miss. 407; Strickland v. Kress Co., 112 S.E. 30; Moore Stave Co. v. Wells, 111 Miss. 796; Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543; Restatement of Law, sec. 235; Baldwin v. A. V.R.R. Co., 96 Miss. 52, 52 So. 358; Barker v. Chicago St. L.R.R. Co., 90 N.E. 1057, 26 L.R.A. (N.S.) 1058, 134 Am. St. Rep. 382.
The action was not barred by the one year statute of limitation, section 2302 of the Code of 1930. The original declaration was filed January 19, 1933. The slander complained of in the declaration was committed from July 29, 1932, to the last part of August or the first of September, 1932. The declaration charged that the defendants said that the plaintiff was guilty of grand larceny.
It is clear that the original declaration was a good common law declaration for slander and the amended declaration meets the motion for a bill of particulars and is the same cause of action as the original declaration, the original declaration stating in general terms that the defendants accused him of stealing. The bill of particulars filed disclosed that these charges were made to Earnest Smith, and E. Smith, and the amended declaration, giving more details charged among other things that the defendants charged the plaintiff with stealing in a declaration made by Bee acting within the scope of his authority, in the Hinds county jail to E. Smith. We submit that there is no difference in law in the original declaration and the amended declaration, they being one and the same thing and the original was filed within the time limit prescribed by the Mississippi statute. Therefore, the cause was not barred and that contention made by the defendants is without merit.
17 R.C.L., sections 179, 180; Y. M.V.R.R. Co. v. Rivers, 93 Miss. 557, 46 So. 705; Miller v. Phipps, 161 Miss. 564; James v. Philips Co., 155 So. 661; Livingston v. Maliver, 137 So. 113; Stith Coal Co. v. Alvis, 141 So. 663; Hill v. Almon, 141 So. 625; 17 R.C.L., sections 139-143, 145; La Floridienne v. Atlantic Coast Line R.R. Co., 63 Fla. 213, 58 So. 186; Nelson v. First National Bank of Montgomery, 139 Ala. 578, 36 So. 707.
Argued orally by W.G. McLain, and Myron S. McNeil, for appellant, and by Hugh V. Wall, and R.L. Bullard, for appellee.
Appellee sued the railroad company and its special agent, Bee, for slander, the alleged slander being in the form of an interrogatory addressed to persons whose names were averred to be unknown to appellee, during the course of an investigation being made by Bee concerning the theft from the railroad company of a large quantity of brass. The first question is whether the original declaration stated a cause of action.
Nothing is better established in the law relating to libel and slander than the rule that a defamation is none the less such merely because it is in the form of a question. The most vicious and harmful defamations are often couched in that form, with the hope to avoid legal responsibility, and at the same time to do all the damage that a direct charge would do. Thus the question: When are you going to pay me for my horse stolen from me the other night? This does not directly charge the person addressed with larceny, but because that person would have no liability to pay, unless a party to the theft, the question is equivalent to a direct charge. On the other hand, if the owner of the stolen horse make inquiry, as is his right and duty to himself to do, and having reason to suspect John Doe as being the thief, or of having guilty knowledge of it, approach in the pursuit of that inquiry a neighbor of Doe, having reason to believe that the neighbor might know facts pertinent to the inquiry, and ask him the question, Do you think, or don't you think, John Doe was in this horse stealing? this is not a slander, although the inquiry might have been more euphoniously phrased. See Hardin v. Home Ins. Co., 168 Miss. 600, 150 So. 648.
Hence, it is not the form of the language, whether direct or interrogatory, which is controlling, nor, in any case, the particular phraseology, unless there could be no reasonable difference in opinion or understanding that the words are plainly defamatory, and were intended as such, whatever the occasion, and regardless of the circumstances under which uttered. Of cases other than those of the class last mentioned, this court has therefore said, in Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 86 So. 354, that no attempt will be made to lay down any definite rule as to the construction of language charged to be slanderous which will govern all cases, but that the particular language used, and the particular facts and circumstances of each case, must control. We are not referring, of course, in anything said in this paragraph, to statements which are absolutely privileged.
There is the further established rule, founded upon public policy, that communications which would otherwise be defamatory are protected as privileged if they are made in good faith in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing to punishment the criminal. 36 C.J., p. 1264. The rule has its application in most cases to inquiries prosecuted or conducted by public officers or their deputies or authorized agents, but it also covers inquiries by private persons, or their authorized agents, in respect to a matter in which they have a direct personal interest, as, for instance, in the case which we have above used as an illustration, wherein the owner was seeking information about the theft of his horse. Whether the privilege goes any further than to those above mentioned we need not consider and we express no opinion, because not within the present case.
Railroads and other large owners of property, which is situated over a wide territory, much of it in open and exposed country, and which is subject day and night to trespasses and theft unless constantly watched, and wherein losses by theft and trespass would run out of bounds unless special agents were employed and kept constantly on duty to inquire into and run down thieves and trespassers, have found it necessary to keep in their employ men trained to that work; and the men so employed are, in the nature of things, properly within the rule stated in the foregoing paragraph. The property of the owners, and the vast volume of goods and freight intrusted to their care, could not otherwise be effectively protected. The transportation business of the country could not be safely or dependently carried on otherwise.
Here the original declaration, to deal with it more particularly, avers that appellee was in the employ of the defendant railroad company, as foreman of roundhouses; that it was charged by the railroad company that several tons of brass had been stolen from it; that the officers of the company or some of them suspected appellee of having had some guilty knowledge of that theft; that the other defendant, Bee, was a special agent of the railroad company, and was authorized to institute and conduct an investigation into said theft; and that in the course of that investigation said special agent Bee said to divers persons, "Don't you think that Wales (meaning plaintiff) was into that brass stealing?" It will be observed that it is not averred who the parties were of whom this inquiry was made. So far as the declaration shows, they may have been persons whom the railroad company had good reason to believe knew enough facts to give pertinent information, and in this, as in other cases, the pleading is taken strongest against the pleader.
It is true that the question carried the implication that the defendants suspected appellee of having had a guilty part in the theft, and in its averred form it may imply a strong suspicion; but it is inconceivable how it could be reasonably supposed that an officer or other party within the privilege of investigation, which we are here discussing, could effectively make such an investigation were he precluded from the mention of any names of those under suspicion, or from asking questions which carried the implication of such suspicion. Without the right to do so, within ordinary and reasonable bounds, the privilege of investigation might as well be abolished, and all officers and others within the privilege admonished, that while their duty is to search out criminals and run down crimes, they must not mention any names, nor disclose any suspicion — which would be to propose a wholly impracticable and self-destructive rule.
The case made by the original declaration is no stronger, when closely analyzed, than was the second count in Hardin v. Insurance Co., 168 Miss. 600, 601, 606, 150 So. 648, 649. In that case the adjuster of the insurance company was making an investigation of a fire which had destroyed property of Hardin, and which was insured by the company, and the adjuster during the investigation asked: "Do you know of any one pushing Hardin on his indebtedness that would cause the house to be burned or set afire? Did you smell gasoline or kerosene at the fire?" These interrogatories carried, of course, the implication of a suspicion of arson and this on the part of Hardin, but it was held that the language was not actionable, the court saying that it was "in the nature of interrogatories pertaining to an investigation." The court applied the principles which we have here more fully discussed, under which we are of the opinion that the original declaration stated no cause of action.
On March 21, 1934, more than one year after the cause of action, if any, accrued, appellee filed his amended declaration in which he alleged that the slanderous words of which he complained were as follows: "Don't you think that Wales (meaning plaintiff) is guilty of that brass stealing? I think they ought to have fired him before." And that these words were spoken by the special agent in the presence of E. Smith. It seems to be conceded by appellants that the amended declaration containing for the first time the declarative language, "I think they ought to have fired him before," when looked at in connection with the preceding interrogatory, does state a cause of action. For the purposes of this case we will accept the concession; and this brings into review the second question whether the amended declaration states a new cause of action in so far as to let in the plea of the one year statute of limitations, section 2302, Code 1930, which appellants interposed to the said amended declaration.
It is broadly said in 37 C.J., p. 1078, that "where the declaration states no cause of action, whatever, it will not arrest the running of limitations; and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action, in reckoning the statutory period of limitations." As a matter of pure legal logic the above announcement would seem to be unanswerable; for if no cause of action at all has been stated in the original pleading, then an amendment which for the first time does state a good cause would be to state a cause new to the particular case — it certainly would not be old in respect to the declaration or complaint. Many, if not most, of the courts have, however, declined to follow strictly the above stated rule. Some of them have said that the plea of the statute of limitations is not available against an amended declaration or complaint, when the facts stated in the original complaint are sufficient, when read in the light of the amendment, to disclose that the amendment is but the perfection of the imperfect statement of the cause of action attempted originally to be pleaded. 17 R.C.L., p. 819. Others have said, and we believe in a more accurate manner, that when the main facts are set out in the original pleading, and an amendment is made which merely elaborates upon those facts and sets forth additional incidental facts not changing the original picture presented, although those incidental facts may be necessary, in point of strict law, to the statement of a good cause of action, the amendment introduces no new cause in such sense as to let in the plea of the statute of limitations.
No case among our decisions upon the precise point has been called to our notice, but we think some light may be obtained from the following: Broom v. So. Ry. Co., 115 Miss. 493, 76 So. 525; Clark v. Gulf, M. N.R. Co., 132 Miss. 627, 97 So. 185; Dodds v. Cavett, 133 Miss. 470, 97 So. 813. In the Broom case the main facts were set out in the declaration, but the declaration averred that the injury occurred while the deceased employee and his employer railroad company were engaged in intrastate commerce. After two years from the time the cause of action accrued, plaintiff amended her declaration so as to aver that the injury occurred in interstate commerce. The court held that there was no new cause of action under the Federal Employers' Liability Act (45 U.S.C.A., sec. 51, et seq.), although the amendment was necessary in order to bring the suit within that act. The court said that the "amendment did not present a new or different statement of facts upon which the action was based" — in other words, that the amendment was of an incidental, not a main fact, although the incidental fact was one necessary to be averred, in strict point of law. In the Clark case, on the other hand, the declaration did not set out the main facts, so as to disclose a real picture of the case sought to be prosecuted, but stated only enough to come within the so-called prima facie negligence statute, section 1985, Code of 1906, section 1580, Code of 1930, and while sufficient in respect to an intrastate case, was insufficient in its disclosure of the main facts to bring it within the interstate liability act. After two years plaintiff sought by amendment to set out the main facts which would be sufficient to show that the action was one under the federal liability act, and the court held that the plea of the two years' statute to the amended declaration was well taken. In the Dodds case, which was one to enforce a materialman's lien, it was discovered in the trial that part of the material furnished had been used in another house, not described in the petition, although up on the same premises. The petitioner sought to reach the other house, along with the ones already described. by an amendment, but the court held that the right thus to include the other house could not be enforced because the twelve months' limitation had run at the time the petition was sought to be amended. Under the statute a description of the house or houses sought to be proceeded against was an essential main fact, not an incidental fact, and thus the amendment to aver for the first time a main or primary or foundation fact, would not relate back to the original institution of the suit.
The length of this opinion is already such that we cannot pursue other cases in our own state, nor the many cases from other jurisdictions which we have examined. These, or most of them, will be found cited under the notes to the texts which we have mentioned, and in the briefs of counsel, as abstracted by the reporter. We merely repeat at this point that in our opinion an approximately accurate statement of the correct rule is that when the main facts are set out in the original declaration or complaint, and an amendment is made which merely elaborates upon those facts and sets forth additional incidental facts not changing the original picture presented, although those incidental facts may be necessary, in point of strict law, to the statement of a good cause of action, the amendment introduces no new cause in such sense as to let in the plea of the statute of limitations.
Here the amendment introduced new main facts; it changed the original picture from one of an inquiry to one which made direct charges. It presented a new cause of action within the rules which we have been discussing, and the peremptory charge for both of the defendants should have been granted.
Reversed, and judgment here for appellants.