Kleem v. Chapot

TYLER, P. J.

Action for damages for personal injuries. The complaint in substance alleged that on the nineteenth day of February, 1928, plaintiff was a passenger on a street-car and at that time defendant negligently backed a truck which he was driving into said car, thereby

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throwing the plaintiff against a certain stanchion, inflicting injuries to her back consisting of contusions and strained ligaments; she also alleged that she suffered a shock to her nervous system. She further claimed that in consequence of these injuries, she suffered adhesions of her kidneys and such injuries were permanent- in character. Damages were prayed for in the sum of $20,000. Trial was had before a jury which resulted in a disagreement.

Thereafter plaintiff filed an amended complaint, alleging that in addition to the injuries recited in her original complaint she suffered a disturbed menstrual function. A demurrer was filed to this complaint, but it was overruled. A second trial was had and the jury found for plaintiff in the sum of $6,695. Motion for new trial was made and denied.

This is an appeal from the judgment. As ground for reversal it is first argued that .the trial court erred in overruling the demurrer to the amended complaint, for the reason that the amendment included an alleged injury which was barred by the statute of limitations. The amendment was made more than a year after the accident happened. It is claimed that the amendment states a new cause of action not found in the original complaint. We cannot agree to this contention as we are of the opinion that the amendment did not state a new cause of action, but on the contrary merely set forth more fully the cause of action alleged in the original complaint, and related back to the time of the commencement of the action. Where a cause of action is not changed, the time to which the statute of limitations runs is the filing of the original complaint. Then again evidence of the injury as set forth in the amended complaint could have been offered under the averments contained in the original complaint, as such evidence was admissible under the general averment of bodily injury and resulting damages.

(Samuels

v.