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92 FEDERAL REPORT,ER.
obvious one. That the drawhead of the car was broken was discernible from a casual glance. * * * By engaging in this business, he assumed the risk of receiving an injury frolllthe defective car. He was bound to know or presume that the cars which he was handling were de{ective, and to be on his guard."
And the court concludes by saying that: "The doctrine of this court is that an employe assumes the risk arising frOlll' defective appliances used or to be used by him, or from the manner in which a business in which he is to take a part is conducted, and such risks are lmown: to him, or are apparent and obvious to persons of his experience and understanding."
-The evident conclusion from which is that if the evidence in the> case before the court had shown, as here, that the risk was an obvious one, and known to the employe, it would have been admissible in evidence, for the palpable reason that the employe assumed it; and, under his implied contract with the employer, no negligence could be imputed by him to the employer fo,r failure to remove the defedive appliance or provide a safe place. Defendant's counsel ask the court, in the event it entertains the opinion that the defendant could not avail itself of the evidence in question for not having specifically pleaded the assumption of the risk by the deceased, to be permitted to amend the answer in that particular, to conform to the evidence. We entertain no doubt of the authority of the court, even after verdict, to permit such amendment. See Bamberger v. 'l'erry, 103 U. S. 40-44; Bowden v. Burnham, 8 C. C. A. 248, 59 Fed. 752-755; Rev. St. Mo. 1889, §§ 2098, 2101. 'Vhile the court is quite firm in its opinion that such amendment is not necessary to support the verdict and judgment in this case, leave is granted to the defendant, instanter, if it so desires, to add to its answer herein such plea, as it would in no wise alter the issues as they were tried, and is conformable to the evidence. The motion for a new trial is denied. SEY:.\IORE v. FRANKLIN. (Circuit Court, W. D. Missouri, W. D. January 16, 1899.) No. 2,000. PLEADING- !\.MENDMENTS.....,DEPARTURE.
Where a petition on which plaintiff obtained an attachment against property of defendant, a nonresident, counted on judgments which were described, the dates, amounts, and parties being given, plaintiff will not be permitted to file an amended petition, after defendant has appeared, setting up judgments of different dates and amounts,· and between different parties, such amended peti1;ion not being a continuation of the original action, but the substitution of a new cause of action;
On !fotion to Strike Out Amended Petition. Charles Thomas and Johnson & Lucas, for plaintiff. Wollman & Wollman, for defendant. PHILIPS, District Judge. On the 26th day of April, 1894, the plaintiff brought suit in the circuit court of Andrew county, Mo., against the defendant by attachment. The plaintiff is a citizen and
SEYMORE V. FRANKLIN.
123
resident of the state of Iowa, and the defendant is a citizen and resident of the state of lllinois. Undf>r the writ of attachment issued therein, a lot of personal property, alleged to belong to the defendant, was seized in said Andrew county. To this action the defendant appeared, gave a delivery bond, and rdained possession of said property. On his petition the cause was l'emoved into the United States circuit court for the St. ;roseph division, and by written consent of parties the cause was transfel'l'ed to this division. 'rhe plaintiff has filed an amended petition herein, which the defendant moves to strikf' out, on the principal ground that it substitutes a new cause of action. To more clearly present the differences between the original petition and the amended petition, the court will state, in juxtaposition, the original and amended causes of action: Original Petition. First count: 'l'he petition alleges that on the 6th day of March, 1888, in the district court of Taylor county, state of Iowa, the plaintiff recovered against the defendant and one .J. C.·Johnson and P. C. King a jUdgment for the sum of $2,000, with six per cent. interest thereon from December 13. 1881; that on said judgment there was paid on May 13. 1889, the sum of $1,380.57. and the further sum of $4lii:l, derived from the sale of land in St. Clair county, Missouri. Amended Petition. First count: The amended petition, in the first eount, alleges, in substance, that on the 13th da\' of Dpcemlwr. 1881, the dpfpndant, J,essE'r Franklin, \vith one Peter C. King and .J oseph C. .r ohnson, in considern tion of the snlll of $2.000, executed and delivered to plnintiff a walTanty (Ieed for the southeast quarter of section 81i, township 70, range 34, in said county of Taylor, state of Iowa. Said deed contaill(,d a certain covenant and of title. The pctition avers the ]ll'(':wh of this warranty, in that one Eunice Hodgin was at the time of the eXI'eution of said deed of a life te in said lands, and one Ben H. :-teele, Alonzo Doudny, and }lartha Outlandl'!' were seis{,tl in fee of the said premises, and that these seisin said county of Taylor, lJrought an' action of ejectment for the I'eeo\'cry of said laml, of which snit in ejectment the defendant and said King and .Iohnson were dnly notified, and required to defend said tillp; that the defense made therpto was unsuccessful, and that the defendants therein were ejeeted from said premises. It is then alll'ged that the plaintiff ('xpended in und ahout the defense of said suit the sum of ::;500, and judgment is asked for said sum of $2,000, the plll'chasl' eonsideration of said land, and said sum of $500, with six pel' cent. interest thereon from Decem ber 1:3, lSi'll, A credit of $1,380.57 on May la, lS89, is given on said judgment, and judgment is prayed for $2,UI1:!.l1, halanee due. Second eonnt: The [letition then proceeds as follows: "And for a. second count of this petition, but not for an additional cause of action," plaintitI alleges that on the (Jtll day of DecemlJl'r, lS88, he rec(}vel'ed in said Taylor COUllcourt, in Iowa, against the defendant Franklin and said King and Johnson, n judgment for the sum of $:3,100 for debt and for costs, in a suit wlwrein said Eunice Hodgin, Alonzo Doudnv, Ben H. Steele, and Martha Outlan\Jer we!'e plaintiffs, and this defendant and said King and Johnson et al. were defend-
Second count: The second count alleges that on the {jth day of }larch, 1888, by the judgment of said court in 'l'aylor county, state of Iowa, one R. A. Toler recovered against the defendants named in the first count a judgment for the sum of $1,700, with six per cent. interest thereon from December 13, 1881; that on said judgment there was paid, May 13, 1889, the sum of $1,809.05, paid by one Berry; that on the - - day of April, lS94, said judgment was sold and assigned to the plaintiff; lmd that, after deducting said
124
92 FEDERAL, REPORTER. ants, on whieh judgment there has sinee beeu. paid the sum of $I,380.50j and prays judgment for the sum of $:::,361.Bl. balanee due thereon. Third couut: The third count is for a further cause of action against the defendant, which alleges that in bel', 1881, this defendant and said King and Johnson sold to one David E. Funkhouser, for a consideration of $1,700, the southeast quarter of section 30, township 69, range 34, situate in said Taylor county, state of Iowa; that thereafter, on the 2d day of January, 1882, said Funkhouser eonveyed said land to one R. A. Toler for a consideration of $1,800 cash and the assumption of a mortgage placed thereon by said I<'unkhouser of $200; that both of said deeds contained certain covenants of warranty of title, which said covenants, the petition alleges, were broken, and that on the - - day of June, 1889, one Eunice Hodgin brought suit in the cireuit eourt of said Taylor eounty, Iowa, against the plaintiff, H. A. Toler, lind said Johnson and King and this defendant and one Berry and said Steele, Doudn;y, and Outlander, to have said deeds of eonveyance aforesaid set aside and vacated; that final dperee was entered thereon against said defendants in November, 1888; that said Toler, in defending said last-named suit, expended the sum of $i:i00; that this snm of :;;500 and the sum of $1,700 purchasc money have been due thereon since Jannary G, 1882, and that the plaintiff claims as a ssignee under said Toler; that tllPrp has been collected thereon $809.05. 1fay 13, 1889, and judgment is prayed for a balance of $1,804.44. eount: The amended petition then proceeds: "And for a fourth count, but not an additional cause of action to that stated in the third eount of the petition," tlw t on the 9th day of Der'embel', 1888, in said district court of 'l'aylor county, Iowa, in a certain snit wherein Eunice Hodgin was plaintiff and this defendant and Joseph C. ,1olmson, Peter C. King, H. A. Toler, Sarnuel Berry, et aI., were defendants, the said Toler recovered judgment against this defendant and Peter C. King and Joseph C. Johnson in the sum of $2,800, and costs, taxed at $G3, which judgment bears interest at six per cent. per annum from the Gth day of Januarr, 1882; and there has ueC'n paid thereon the sum of $1,809.05; and plaintiff sues as assignee of said Toler, alleging that there is now due on said judgment the sum of $2,592.37 and intl'rest thereon, and asks judgment for the SUlli of $4,954.28, with interest thereon.
and computing the interest, there remains due to plaintiff the sum of $2,· 321.30, for whIch judgment is asked.
From the foregoing comparison it is quite apparent that the petitions are for different causes of action. The first count of the original petition is simply an action to recover on a judgment al· leged to have been recovered by the plaintiff against the defend·
125
ant and Joseph C.·Tohnson and Peter C. rendered the 6th day of :March, It\88, with two credits thereon of $1,380.57 and $16i{, paid May 13, It\89. 'l'he second eount of the original petition is an action on a judgment of date March 6, 1888, alleged to have been recovered by one Toler against this defendant and said Johnson and King for $1,700, with 6 per eent. interest from December 13, 1881, entitled to a credit, 1Iay 13, 1889, of $1,809.05, alleged to have been assigned to plaintiff in April, 18n4; balance claimed is $2,321.30. The first count of the amended petition is for a breach of eovenant of title to certain lands sold by this defendant and said Johnson and King to the plaintiff, with a claim of damages for $2,692.11; while the second count of the amended petition, with the singular statement that it is not an additional cause of action, alleges that on the 6th day of December, 1888, the plaintiff recovered against the same defendants a judgment for the sum of $3,100 in the ejectment suit last above named, and judgment is asked for $2,361.91, but not in addition to the sum mentioned in the first count. And the third count of the amended petition counts on a sale of other real estate by this defendant and said Johnson and King to one Funkhouser, who sold to one Toler, which deeds were set aside at the suit of one Eunice Hodgin, and judg1nent is prayed for $500 expenses in and about defending said suit by said Toler and $1,700 purchase money paid by Toler to said Funkhouser; and plaintiff sues, as assignee of that judgment, for a balance of $1,804.44. If the amended petition does not count upon new and substituted causes of action, and is not a continuation of the original cause of action, my analysis of these pleadings is at fault. There is nothing whatever in the original petition to indicate that the defendant, Franklin, ever conveyed to the plaintiff, or anybody else, any land with covenants of title which had been broken, and that it was intended to recover from the defendant damages resulting therefrom, whether based on judgment or otherwise. If it be said that, inasmuch as the original petition did not state the contract or transaction on which the judgment arose, it is no departure to recite such facts by way of inducement, the answer is that the judgment counted on in the first count of the original petition is described as having been recovered on the 6th day of 11arch, 1888, in favor of the plaintiff against the defendant and J. C. Johnson and P. C. King, which is entitled to credits of a given amount, and of a certain date; whereas the first count of the amended petition counts on a judgment in favor of a different party, in an action of ejectment, and recovery is sought for the original purchase money and $500 expended in the defense of the action of ejectment, from which it is apparent that it is not based on a judgment at all inter partes. And, while protesting that the second count of the amended petition is not intended to be predicated of an additional cause of action, it nevertheless alleges a judgment between different parties plaintiff and defendants, of a different date, and for a different sum. To sustain such an amendment it must, therefore, be held that a party may bring suit in attachment in this state against a nonresident defendant, based upon a certain described judgment, and obtain jurisdiction by seizure of the property of the defendant within the state, and
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92 FEDERAL REPORTER.
then, after the nonresident defendant has thus been induced to enter his appearance and give a forthcoming bond for the property seized, the plaintiff may abandon the original cause of action, to wit, a given judgment of a particular date, for a given sum, and substitute the history of an action for breach of covenant on a deed of conveyance and for moneys expended in the defense thereof, in which a judgment of a different date and for a different sum is claimed. As said by the supreme court of this state in Lumpkin v. Collier,69 Mo. 170, if this be permissible, "a defendant served with process on one cause of action suffering default might be confronted with a judgment on a cause of action totally different from that which he was summoned to answer." In this case, for instance, the writ of attachment, as already stated, was obtained against the nonresident defendant on a simple action of debt, based upon certain alleged judgments obtained in the state of Iowa, stated in the form of two counts, with varying statements, made, doubtless, to meet the possible state of the evidence as to the judgment was one way or the other as to the plaintiffs and defendants therein, wherein the amount of the judgment prayed for is a balance of $2,321.30, to which the defendant was induced to enter his appearance and give a forthcoming bond for the attached property; whereas in the amended bill two other distinct substitnted causes of action are interposed,-one growing out of a breach of covenant in wal'ranty deeds, alleged to have been set aside, whereby the defendant is attempted to be held for the consideration money in the deed of conveyance and for expenses in defending the same, and the otherB are jndgments obtained between different parties than those named in the original petition, of different dates, and the plaintiff sues as assignee of the judgment creditor, and claims judgment in the aggregate sum of $7,646.39. Under the Code of Missouri, amendments of pleadings are allowed with liberality, but always subject to the qualification that they must be in furtherance of justice, and with the further limitation that the amendment must be a continuation of the original action, and not the subgtitution of another cause of action. The rule is succinctly stated by the supreme court in Buel v. T'rangfer Co., 45 Mo. 562, as follows: "'Vhere the amendment sets up no new matter or claim, but is a mere vaaffecting a demand already in issue, then the riation of the amendment relates to the commencement of the suit, and the running of the statute is arrested at that point; but where the amendment introduces a new claim. not before asserted, then it is not treated as relating to the commencement of the suit, but as equivalent to a fresh suit upon a new cause of action."
Another test as to whether or not it is the same cause of action, to a limited extent, is applied by the supreme court of the state, and that is whether the evidence essential to sustain substantially the original cause of action would be admissible to sustain the amended eause of action. Lumpkin v. Collier, supra, and Scovill v. Glasner, 79 Mo. 449. Nor is the contention of plaintiff's counsel correct that, inasmuch as the different causes of action stated in the two petitions might have been embraced in the original petition in separate counts, the same end ma:r be accomplished by setting out, by way of substi-
UNITED FIREMEN'S INS. CO. V. THOMAS.
127
tution, the other causes of action in the amended petition. Scovill v. Glasner, supra. It has been expressly held that, where a party sues upon a contract under which he elaims as assignee, he cannot amend so as to count on a contract alleged to have been made directly with himself. Bigham v. Talbot. 63 'l'ex. 271, approved in Railwa,r Co. v. Wyler, 158 U. S. 292, 15 Sup. Ct. 877. The converse of this proposition must obtain,-that where the plaintiff, as in this case, first declares on a judgment obtained in his favor against certain named parties, or on a contract between him and such parties, he cannot amend by declaring as an assignee of the judgment obtained between the other parties, or of a right of action inhering in other parties. In Sicardv. Davis, 6 Pet. 124, the plaintiff bronght an action of ejectment, laying his demise as having been made by Stephen Sicard on January 30, 1815, and at a subsequent term of court he was given leave to amend by laying the demise in the name of the heirs of the original grantee, Joseph Phillips, and others, to whom the land had been conveyed before the execution of the deed under which Sicard acquired title. In respect of this, Chief Justice Marshall said that "limitations might be pleaded to the second allegation, though not to the first, because the second count in the deelaration, being on a demise from a different party, al"serting a different title, was not distinguishable, so far as respects the bar of the act of limitations, from a new action." In short, this amended petition is a elear departure from the original petition within the principle of the ruling of the supreme court in Railway Co. v. 'Vyler, supra. Among the instances 6>1ven in illustration of the rule is that an action of assumpsit, changed by amendment into an action of debt, is a substitution, and not an amendment. Crofford v. Cothran, 2 SnpPd, 492. The motion to strike out the amended petition is sustained.
UNITED
INS. CO. v. THO:\IAS. February 7, 18!)!).)
(Circuit Court of Appeals, Seventh Circuit.
Ko.404. 1. INSGRANCE-AOENCY OF BROKER-NOTICE TO COMPAKY.
An insurance broker was employed by an owner of property to effect insurance thereon in such companies as he should approve. He went to the general agents of an insurance company, and made and signed an application in behalf of the property owner for a part of the amount, 011 which a policy was issued and delivered to him; and, on his collection of the premium from the insured, he was allowed by the gelleral agents a share of their commissions thereon. He was 1l0t otherwise employed either by them or the company. Held, that he was not either in fact or law an agent of the company ill the transaction, so as to charge it with his knowledge that otlJer insurance on the property was effected at the same time, in violation of a cOlldition of the policy. Rev. St. Ill. c. 73, § 40, relates companies doing business in the appoint an attorney, file a copy of in certain cases deposit security. to the regulation of foreign insurallce state, and prescribes that they shall their charter, and obtain a permit, and It imposes penalties, not only on the
2.
SAME-CONSTHUCTION OF 8TATUTE.