Meeks v. Southern Pacific R. R.
Before: McKinstry
Synopsis
Statute of Limitations—Amendment to Complaint—Variance.—The original complaint alleged that by reason of injuries inflicted upon the plaintiff’s son by the defendant the plaintiff had been compelled to pay certain sums of money for surgical and medical attention, etc., amounting in the aggregate to three hundred and sixty-nine dollars. The complaint, more than four years after the cause of action accrued, was amended so as to allege that the plaintiff paid a portion of the said amount and incurred liability for the balance prior to the beginning of the suit.
Held: The cause of action to recover the sum for which the plaintiff had become liable, but which he had not paid, was barred by the statute of limitations.
McKinstry, J.: We are inclined to the opinion that defendant’s demurrer to the amended complaint was, for certain technical reasons, properly overruled.
[151]But defendant pleaded the limitation of Section 339 of the Code of Civil Procedure.
No action was brought to recover the sum for which plaintiff had become “liable,” for medical attendance, etc., until August 24,1881, nearly four years after the original complaint was filed. The Court found that plaintiff necessarily incurred liabilities for medical attendance, nursing, etc., in the sum of three hundred and fifty-five dollars prior to the commencement of the action, of which the sum of one hundred and fifteen dollars was paid before the action was brought.
It follows that the period prescribed by Section 339 of the Code of Civil Procedure, within which the action to recover the sum for which the plaintiff had become liable, but which he had not paid, had elapsed when the amended complaint was filed. The judgment therefore ought to have been for one hundred and fifteen dollars instead of three hundred and fifty-five dollars.
Ordered that the judgment be modified to accord with the ■ views hereinbefore expressed.
Boss and McKee, JJ., concurred.
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