Augusta Railway Co. v. Andrews , 92 Ga. 706 ( 1893 )

Simmons, Justice.

1. When this case came before us on a former writ of error, the judgment of the court below was reversed on the ground that the court erred in not sustaining a demurrer to the declaration. (89 Ga. 653.) An amendment to the declaration was afterwards offered and allowed in the court below, before the remittitur was made the judgment of that court. This was done over the objection of the defendant, who insisted that the amendment came too late, and filed a demurrer on the several grounds set out in the reporter’s statement; and the case is now before us on exceptions to the allovrance of the amendment and the overruling of the demurrer. It was contended that the amendment came too late, because it was not offered before the remittitur was filed and before the order to enter the remittitur was offered. As to this we hold that the mere filing of the remittitur and offer of an order to enter it as the judgment of the court, did not deprive the court of such power as it had in respect to amendment. The remittitur had not then been made the judgment of the court, and until this was done the declaration was amendable. See Sullivan, Cabot & Co. v. Railroad Co., 28 Ga. 29; Thurmond v. Clark, 47 Ga. 500. Nor does this ease fall within the principle of the decision in Central Railroad Co. v. Paterson, 87 Ga. 646, which was referred to in support of the position that no amendment is allowable at any time after this court has held that the declaration does not set forth a cause of action. In that ease the ruling excepted to was the sustaining, and not, as in the present case, the overruling of the demurrer; so that when this court affirmed the judgment, the case was entirely out of court and there was nothing to amend by. Here there was still a case in court when the offer to amend was made. It was objected that the amendment was barred by the statute of limitations because not offered within two years from the date on which the cause of action arose or the date on which the suit was filed. An amendment which introduces no new cause of action is not barred if the action itself is not barred; and this amendment, as will be shown, did not introduce a new and distinct cause of action. Such an amendment relates back to the filing of the suit. Hines v. Rutherford, 67 Ga. 606; Poullain v. Poullain, 76 Ga. 422(9 a); Verdery v. Barrett, 89 Ga. 349; Colley v. Coffin Company, this, term, ante, 664.

2. On the 6th of June, 1892, the court below announced that the proposed order to enter the remittitur would not be passed upon until the plaintiff could be heard on the motion to amend; and no further action was taken by either party until December 23d, when the amendment was offered. The bill of exceptions was tendered on the 22d of February, 1893. Even if the court erred in failing or refusing to take action when so requested upon the proposed order to enter the remittitur, such failure or refusal was not excepted to pendente lite, and after the lapse of more than thirty days it was too late to except to it otherwise.

3. We held, when the case was here before, that the declaration was defective in not alleging that the plaintiff had permission from the owner of the electric system on which he had entered at the time he Avas injured,—: the fire-alarm system of the Augusta Fire Department, —to come in contact with its wires or to climb its pole m the prosecution of his business for the telephone company, or that the defendant knew of his presence at the scene of the injury. (89 Ga. 653.) The amendment in question is as follows :

“ Petitioner further shows that, before and at the time of said injuries, the ownership or custody and control of said fire-alarm wires and poles was in the City Council of Augusta, and that permission had been granted by said City Council of Augusta, through its duly authorized officers and agents, to said telephone company, or its employees, to climb said fire-alarm pole in the work of stringing its telephone wires. And further shows, that besides the defendant company the following corporations had, at the time of the injuries herein complained of, numerous poles and Avires erected on various streets of said city of Augusta, to Avit: the Western Union Telegraph Company, the.Postal Telegraph Company, the Bell Telephone Company, the Thomson-Houston Electric Company, and the Augusta Eire Department. That there is scarcely a Avork-day in the year but what servants and employees of these different corporations are not engaged in various kinds of work on the poles and among the wires thereof, in repairing the old and stringing new lines of Avires, putting on new brackets and insulators, etc., etc. That it is customary and usual for the employees of each of said corporations to go up on the poles and among the wires of each other for the purpose of doing said work, without .formally obtaining permission therefor. That these facts Avere knoAvn to the defendant company, its officers and servants, or might have been known by the exercise of ordinary care. That the provisions of said city ordinance, requiring guard or dead Avires at crossings or intersections, Avere made largely for the protection and security of persons thus engaged in working on said poles and among said Avires of the corporations above enumei’ated.”

There was no error in allowing this amendment or in refusing to sustain the demurrer to the declaration as amended. The amendment did not set up a new and distinct cause of action, but amplified, enlarged and made complete the same cause of action intended to be set forth in the original declaration, and relieved it of the main defect upon which it was adjudged to be insufficient. According to the declaration, the injury was caused by a current of electricity transmitted from the feed-wire of the electric railway system which the defendant company was then operating, to and along the wire of the fire-alarm system, to where it came in contact with the plaintiff while he was upon a pole of the latter system stringing wires in the service of the telephone company; and the injury was thus caused by reason of the defendant’s negligence in permitting its feed-wire to come in contact with the fire-alarm wire at a certain point indicated, and in failing to separate and keep separate, at a safe and proper distance, its feed-wire and the fire-alarm wire at that point. It will, be seen, therefore, that the theory of the action is not changed by the amendment. There is no change in respect to the alleged injury and the manner of it, or in respect to the negligent acts or omissions which constitute the breach of duty on account of which the recovery is sought. But the declaration being insufficient in merely assuming the duty to exist, without setting out anything which would tend to show that it existed as to the party complaining,—who so far as appeared might have been a mere trespasser,—the amendment supplies the omission and thus makes complete the intended cause of action. Tested by the rules laid down in Ellison v. Railroad Co., 87 Ga. 691, it is clear that there was enough to amend by, and that the amendment did not introduce a new and distinct cause of action. See opinion in that case, p. 716(7).

The allegation that permission to climb the pole had been granted by the “ City Council of Augusta through its duly authorized officers and agents ” was sufficient, without stating the name of any particular official or agent of the municipal government.

Judgment affirmed.