Gainesville Midland Railway v. Vandiver , 141 Ga. 350 ( 1914 )

Atkinson, J.

1. In pleading a cause of action, where a foreign statute is not relied upon, it is unnecessary, and indeed it is improper, to incorporate in the pleading a statement of the law upon which the cause of action is based. The court will apply the appropriate law to the facts as pleaded, and the reference to the law will be regarded as surplusage. Voelker v. Chicago, M. & St. P. Ry., 116 Fed. 867. Of course it is not error to strip a plea of immaterial matter or mere surplusage; and therefore there was no error in allowing the amendment striking from the petition the reference to its being brought under the Georgia statute.

2. Objection to the second amendment comes out of the introduction into the pleadings of the additional allegation that the defendant, at the time alleged, was engaged in interstate commerce, and that the plaintiff’s injuries were received by the negligence of the defendant’s servants so engaged. The amendment did not have for its object the pleading of the United States statute as a foreign law. That was unnecessary.' Acts of Congress, where applicable, are domestic laws, and our courts will take judicial knowledge of them without their being pleaded or proved. It was contended that, by the allegation that the defendant was engaged in interstate commerce at the time of the plaintiff’s injury, the amendment changed the cause of action as originally laid. We-do not think so. The cause of action was the injury sustained by the plaintiff in the negligent operation of the specific train described in the petition. The time, the place, and the manner of the injury were not varied. No new person was brought into the ease, and the only added fact was the character of the business in which .the train was engaged'. When a suit is brought against a carrier by an-employee on account of an injury sustained in the operation of its locomotive and’cars, all that is necessary for the plaintiff to allege, is a statement of the facts showing his relation as an employee and the circumstances under which he sustained his injury, showing negligence and a right of recovery; and on the trial of the case, if the plaintiff shows a right to recover under any law of which the court will take judicial cognizance, that law will be applied. Mo., Kan. & Tex. Ry. v. Wulf, 226 U. S. 570 (33 Sup. Ct. 135, 57 L. ed. 355). In the case cited the plaintiff expressly asserted a right of action under the laws of Kansas, without making reference to the act of Congress. 1^ was held, that, where the Federal employer’s liability act is applicable, the State statute on the same subject is overcome by reason of the supremacy of the former; that the trial court was presumed to be cognizant of the enactment of the Federal employer’s liability act, and to know that, with respect to the responsibility of interstate carriers by railroads to their employees injured in such commerce after its enactment, it had the effect of superseding the State laws on the same subject. A recovery based upon the act of Congress, as applied to the facts of the ease, was allowed to stand, notwithstanding that the plaintiff in in his pleadings based his right of recovery on the State statute.

When the proof is submitted, and it develops that the injury was committed by a carrier engaged in. interstate commerce, then it becomes a question of comparison of the pleadings with the proof. If it be necessary to amend the pleading by alleging the interstate character of the carrier, it would be simply an elaboration of the old matter, and not the introduction of new matter. On the question of amendments this court, in City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318), said that no new and distinct cause of action is added to a petition by an amendment which contains additional matter descriptive of the same wrong pleaded in the original petition, and which does not plead any other and different wrong. See also Civil Code, § 5682. From'what has been said it is apparent that the second amendment did not introduce a new cause of action.

3. The demurrer also raises the point that inasmuch as under the Federal employer’s liability act an action must be brought within two years of the time the injury is sustained, and the petition discloses that more than two years intervened between the time of the injury and the date of the amendment, the action is barred. There is no occasion to apply any other than the rule that an amendment relates to the time of filing the petition which is amended. In the ease of Mo., Kan. & Tex. Ry. v. Wulf, supra, a similar point was before the Supreme Court of the "United States. The plaintiff in that case sued as sole beneficiary under a Kansas statute authorizing her to bring suit. At the trial an amendment was allowed to the effect that the plaintiff might sue as personal representative, on the same cause of action, under the Federal statute, instead of as sole beneficiary under the State statute; and it was held that such amendment was not equivalent to the- commencement of a new action and not subject to the statute of limitations. There was no error in overruling the demurrer on that point. Judgment affirmed.

All the Justices concur.