This is a suit by John W. Ellenburg against the St. Louis San Francisco Railroad Company, the Illinois Central Railroad Company, the Central of Georgia Railroad Company, and the Birmingham Belt Railroad Company. The complaint contained one count. It was filed on the 13th of January, 1923, claiming damages under the federal Employers' Liability Act, in that plaintiff was engaged in interstate commerce at the time of injury, which occurred on December 5, 1922. On motion of the plaintiff, the cause was dismissed as to all defendants, except the Birmingham Belt Railroad Company. It pleaded not guilty. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court the defendant appealed. This court reversed the judgment and remanded the cause, because the action under the evidence should have been brought under the Workmen's Compensation Law of this state, and not under the federal Employers' Liability Act. See Birmingham Belt Railroad Co. v. Ellenburg, 213 Ala. 146, 104 So. 269. The plaintiff then appealed, by certiorari, the cause to the Supreme Court of the United States, and that court denied the writ.
The plaintiff, on the 20th of February, 1926, amended the complaint by striking out the count claiming damages, under the federal liability statute, and by inserting a count or claim for compensation, under the Workmen's Compensation Statute, for the same injury. The original count, which was stricken, was not verified by affidavit, but the amendment was verified and drawn under and according to the requirement of section 7578 of the Code of 1923.
The defendant objected to the allowance of the amendment, and also moved to strike the amendment because: First, it came too late; second, it constitutes a complete departure from the original cause of action stated in count 1, which was stricken; and, third, the original complaint was not verified, and the amendment, which is verified, was not filed within a year, as the provisions of the Workmen's Compensation Law provides. The court overruled the objections to, and the motion to strike, the amendment.
The defendant pleaded that the right of action set up in the amendment was barred by the statute of limitations of one year, as provided by section 7570, Code of 1923. Demurrers of plaintiff to this plea were sustained by the court. The court, then, made an award of compensation on the oral testimony before it in favor of the plaintiff for $15 per week for 300 weeks.
It is true that section 7570 of the Code of 1923 provides:
"In case of a personal injury all claims for compensation under articles 1 and 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable * * * or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 7578 hereof."
This court, in Ex parte Sloss-Sheffield Steel Iron Co., supra, held as to this statute (section 7570)
"The Legislature in express terms has made section 20a [now 7570, Code of 1923] a statute of limitation."
This statute (section 7570) must be construed in connection with our amendment statute (section 9513 of the Code of 1923), which provides:
"The court must * * * permit the amendment of the complaint * * * by striking out or adding new counts or statements of the cause of action, which could have been included in the original complaint * * * and such amendment shall relate back co the commencement of the suit, and it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action so long as they refer to the same transaction * * * and parties as the original."
The original complaint is for damages for the same injury, the same transaction, as the amended complaint. The former seeks *Page 397 damages for the injury under the federal Employers' Liability Act, and the latter seeks compensation for the same injury under the Workmen's Compensation Statutes of this state. Could this amendment have been included in the original complaint by separate count with the stricken count? If so, then the court did not err in allowing the amendment. Each count refers to the same injury, the same transaction; and each refers to the same parties; so we must hold the amended complaint relates to no new or other cause of action than that presented by the original complaint. And section 9467 provides:
"All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter, and the issue may be determined separately by the jury."
The original complaint and the amended complaint each present an action arising out of the same transaction, or relating to the same subject-matter; so we must hold that each could have been filed together, included in separate counts in the original complaint; and such an amendment is not barred by the statute (section 7570, Code 1923) of limitations of one year, but it relates back to the commencement of the suit under the amendment statute (section 9513, Code of 1923). If both counts had been filed originally in one complaint, the issue presented by the separate counts in one complaint could be determined separately from the facts by the jury; a proper judgment rendered by the court, and the cost fairly apportioned. Section 9467, Code of 1923.
This court, in Alabama Consolidated Coal Iron Co. v. Heald,154 Ala. 586, 45 So. 687, wrote:
"A new cause of action is not set up by amendment, within the rule governing the statute of limitations in such cases, where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other."
See, also, Nash v. Minneapolis St. L. R. Co., 141 Minn. 148,169 N.W. 540 and 541.
The original complaint and the amendment contain the same party plaintiff and defendant, the same injury; each seeks compensation for the same wrong; the facts are practically the same; and the only change made by the amendment from the original complaint was from a procedure for compensation for the injury under the federal Employers' Liability Statute to a procedure under a state statute for compensation for the same injury.
So, under the foregoing statutes and authorities, we hold the court did not err in allowing the amendment, nor did it err in sustaining plaintiff's demurrer to the plea of the statute of limitations.
The application for writ of certiorari should be denied, and the judgment affirmed.
ANDERSON, C. J., and GARDNER, J., concur with this dissenting opinion.