Summary
In Lassiter v. R. R., 136 N.C. 89, the Court points out the distinction between the defective statement of a good cause of action and the statement of a defective cause of action, but it was held in Capps v. R. R., supra, that an amendment introducing a cause of action which had not theretofore been stated, was demurrable if more than twelve months had elapsed from the death of intestate to the filing of such amendment.
Summary of this case from George v. R. ROpinion
(Filed 27 September, 1904.)
1. APPEAL — Amendments — Pleadings.
An appeal lies from a refusal to allow an amendment of pleadings on the ground of a want of power.
2. AMENDMENTS — Pleadings — Limitations of Actions — The Code, Sec. 233 ( Subsec. 2), 273, 1338.
Where a complaint in an action for wrongful death discloses that the death and wrongful act occurred in another State, but fails to state the law of such State, an amendment pleading it does not state a new cause of action, although the period of limitation prescribed by the foreign statute has elapsed.
3. Semble, If not pleaded and proved, the presumption is that the common and statutory law of another State is the same as that of this State.
ACTION by H. C. Lassiter, administrator, against the Norfolk and Carolina Railroad Company, heard by Judge W. B. Councill, at March Term, 1904, of NORTHAMPTON. From a judgment for the defendant the plaintiff appealed.
S. J. Calvert, Peebles Harris, T. W. Mason and W. E. Daniels, for the plaintiff.
Day Bell and George B. Elliott, for the defendant.
The complaint is a sufficient statement of the facts constituting a cause of action (if the death had occurred in this State) for negligently causing the death of plaintiff's intestate by ordering him to go between cars not equipped with improved couplers to uncouple said cars, in obeying which order he was run over and killed. The defendant demurred on the ground that the complaint disclosed that "the intestate came to his death in the State of Virginia by reason (90) of the alleged wrongful acts of the defendant, but does not allege that an action for wrongful death may be maintained in that State." Thereupon the plaintiff asked leave to amend the complaint by pleading the "statute law of Virginia, which gives a right of action for negligently causing death," which motion was refused on the ground that "the Court had no power or discretion to allow the same, and but for such want of power the amendment would be allowed." The Court further gave as a reason why it did not have such power to grant the motion: "1. Such an amendment would introduce a new cause of action and not enlarge or amplify the cause of action pleaded.
2. Such an amendment would deprive the defendant of the benefit of the statute of limitations embraced in the statute law of Virginia."
The refusal of an amendment on the ground of want of power is appealable. Martin v. Bank, 131 N.C. 121. The "cause of action" is the "statement of facts," upon the happening or non-happening of which the plaintiff bases his action. The Code, sec. 233 (2), says the complaint must contain a plain and concise "statement of facts constituting the cause of action." Upon those facts, if true, the law gives a "right of action." This right of action is a matter of law of which the Court usually takes judicial notice, but if the tort or contract accrued beyond the State line the law of the foreign State should be pleaded and proved — not because it is in that case a part of the "cause of action" any more than if the transaction had taken place within the State, but because the Court is not presumed to know the law of all other States. Our statutes do not require the foreign statute to be pleaded but that it must be brought to the apprehension of the Court, if a written law, by the mere exhibition of the printed statute "contained in a book or (91) publication purporting to have been published by the authority" of the foreign State, and "the unwritten or common law of another State may be proved as a fact by oral evidence." The Code, sec. 1338; Copeland v. Collins, 122 N.C. 621. There are, however, many decisions that the foreign law should be pleaded and proved. The cause of action, plus the right of action thereon, constitute what our Code styles a "good cause of action." Some authorities call it a "whole cause of action." 5 A. E. Enc. (2 Ed.), 776n. The subject of an action is the thing, the wrongful act for which damages are sought, the contract which is broken, the act which is sought to be restrained, the property of which recovery is asked. The object of an election is the relief demanded, the recovery of damages or of the land or personalty sued for, the restraint or other relief demanded.
If not pleaded and proved the presumption under the authorities is that the unwritten or common law of another State is the same as the unwritten or common law in this State. Minor Confl. Laws, sec. 214, says that for as good reason the weight of authority is now that in the same absence of pleading and proof the presumption is that the written law of another State is the same as the written law here. And citing in a note the authorities, thus sums up: "Certainly the great weight of authority is in favor of the rule. Nor is it in most instances apt to work any material injustice, since a failure of both parties to present to the Court any evidence of the proper foreign law may reasonably justify the Court in presuming that neither party finds anything there which would place him in a position more advantageous than he occupies under the lex fori, or which would place his adversary in a less advantageous position. * * * Neither party can be injured by the presumption that the two laws are similar." Among the numerous cases, besides those cited by Minor, supra, sustaining this are: Scroggins v. McCelland, 37 Neb. 644, 22 L.R.A., 110, 40 Am. St., (92) 520; Wickersham v. Johnston, 104 Cal. 407, 43 Am. St., 118; Kuenzi v. Elvers, 14 La. Ann., 391, 74 Am. Dec., 434; James v. James, 81 Tex. 373; Haggin v. Haggin, 35 Neb. 375; Monroe v. Douglas, 5 Seld., 447; Peet v. Hatcher, 112 Ala. 514, 57 Am. St., 45; Sandridge v. Hunt, 40 La. Ann., 766.
But we do not pass upon the point and need not do so. Those authorities are as to the presumption of the law in another State being the same as ours when not shown by the printed volume or by oral evidence if the law is unwritten. An entirely different question is before us, i.e., whether the trial Court has power to permit an amendment to allege the nature of the law in the State where the transaction took place, and prove it when by inadvertence such allegation has been omitted in the complaint. Such allegation does not add to or change the "cause of action" which by The Code, sec. 233 (2), is a "statement of the facts." Those facts, the death and the wrongful negligence, are already fully stated. "In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action." R. R., v. Babcock, 154 U.S. 197. The failure to allege this foreign law is merely a defective statement of a good cause of action. But even if there were a failure to allege an essential fact to constitute the cause of action, The Code, sec. 273, expressly gives power to amend "by inserting other allegations material to the case." The rounding out of the complaint to cure a defective complaint, even in material matters, is not changing a cause of action nor adding a new cause, but merely making a good cause out of that which was a defective statement of a cause of action because of the omission of "material allegations" which The Code, sec. 273, authorizes to be inserted by amendment. If the cause of action were not defectively stated there would be no need (93) of amendment.
The difference between a "defective statement of a good cause of action" which can be amended by inserting "other material allegations," as here, and a "statement of a defective cause of action" is that the latter cannot be made a good cause by adding other allegations. Ladd v. Ladd, 121 N.C. 121. We have a case exactly "on all fours" with this under the New York Code, sec. 723, which is the same as our Code, sec. 273. In that case, Lustig v. R. R., 20 N.Y., Supp., 477, the administratrix brought suit in New York for the death of her intestate in New Jersey caused by the wrongful act of the defendant. After both sides had rested the defendant moved to dismiss "because there was no allegation in the complaint, nor proof on the trial, of any statute in New Jersey authorizing a recovery of damages for death from wrongful injury, and that as no right of recovery existed at common law no cause of action had been made out." The trial Court reopened the case and allowed the plaintiff to amend her complaint and to supply this defect in her evidence. This was sustained on appeal, the Court holding that it was authorized by the New York Code, sec. 723 (which, in the words of our Code, sec. 273, allows an amendment "inserting allegations material to the case"), and that this "did not add a new cause of action" nor change the cause of action, but merely perfected a defective statement of a good cause of action, defective because of the omission of this averment. For the same reason the plea of the statute of limitations would not run, because the facts of the transaction being stated in the complaint the defendant had notice of the demand from the beginning of this action. The same power of amendment to insert the allegation of the foreign statute (which had been omitted in the complaint) was sustained and the same ruling that the (94) amendment related back to the beginning and the statute of limitation did not bar was made in R. R. v. Nix., 68 Ga. 572, in effect overruling a former Georgia decision which is the only one found in any Court to the contrary. In Tiffany on "Death by Wrongful Act." sec. 202, it is said that "if the plaintiff's right of action arises under a foreign statute he should allege and prove it," but if the complaint "fails to allege the foreign statute, an amendment alleging it is not open to the objection that it sets up a new cause of action, although the period of limitation prescribed by the foregn statute has elapsed." In The New York, 175, U.S., 187, where a Canadian statute was treated as if in evidence, on the trial below, though it was not pleaded and the record did not show that it was put in evidence, the Court held on appeal that it should be treated as if pleaded and put in evidence. In Steamship Co. v. Ins. Co., 129 U.S. 447, the United States Supreme Court held that even after verdict, "if justice should appear to require it," it would remand the case with directions to the lower Court to allow pleadings to be amended and proof of the foreign law (of Great Britain) to be introduced.
Whether this plaintiff should recover must depend upon the facts as to the death of the plaintiff's intestate, which, if proved, as stated in the complaint, was caused by the wrongful act of the defendant. If any material allegation is omitted the Court had power to permit its insertion (The Code, sec. 273), and if the defect can be thus cured by amendment, it is a defective statement of a good cause of action and not a defective cause of action. Ladd v. Ladd, supra. This is the very spirit of our present procedure, and it is but justice that when the plaintiff has sustained injury, if the complaint is imperfectly stated he should be permitted by amendment to cure the inadvertence of counsel in drawing the complaint, and receive any relief to which, upon the (95) facts of the transaction, he is entitled to recover.
A somewhat similar case is where, in a magistrate's court, in which the jurisdiction is limited by the Constitution to cases "wherein the sum demanded shall not exceed $200," though that essential averment is not made in the warrant or complaint, yet if such is the fact an amendment to make such averment will be allowed even in the appellate court. McPhail v. Johnson, 115 N.C. 302, and many cases there cited. In those cases, in the face of the record, there was no jurisdiction, and no cause of action that could be entertained by the court till after the amendment. Where there would be no difference in the proofs of the transaction under the amended complaint, an amendment is allowed even where the action becomes one for the conversion of property instead of one for the recovery of specific personal property. Craven v. Russell, 118 N.C. 564. Where, in an action to recover purchase money there was failure to aver that the plaintiff was "willing, ready and able" to tender a good deed, amendment was allowed after the close of the evidence. Woodbury v. Evans, 122 N.C. 779. Where the amendment stated title in the plaintiff different from that alleged in the complaint, the Court said that "the cause of action was for the recovery of the crop, and it could make no difference how the plaintiff claimed it." King v. Dudley, 113 N.C. 167, cited and approved in Simpson v. Lumber Co., 133 N.C. 99.
Here, there is no change or addition asked either as to the relief sought nor in "the statement of facts," which under The Code, sec. 233 (2), "constitute the cause of action," but an amendment to aver the nature of the law in Virginia and discarding, as we may, the authorities that the law there is presumed to be as here, the amendment would be at the most the "inserting of a material allegation," and so expressly authorized by The Code, sec. 273. In holding that the (96) Court had no power to permit this there was
Error.