I concur in Mr. Justice THOMAS'S opinion, but in view of the importance of the question involved, I wish to submit a few observations of my own which I think support his conclusions.
In support of their contention that the amendment of the declaration made in this case did not relate back to the time when the action was begun, so as to prevent the running of the statute of limitations, defendants in error cite the cases of La Floridenne, etc., v. A.C.L.R. Co., 63 Fla. 213, 68 So. 196, and Livingston v. Malevar, 103 Fla. 200, 137 So. 113, which cases have been cited with approval and followed in Courtright. v. Tunicliffe, 104 Fla. 720, 140 So. 777; James v. Dr. P. Philips Co., 115 Fla. 472, 155 So. 661; Fancher v. Ramsey,121 Fla. 631, 164 So. 688; Barnett v. Slaughter, 123 Fla. 237,166 So. 580, and Ivey v. So. States Power Co., 128 Fla. 345,174 So. 834. See also in this connection Wilbur v. Hampton,128 Fla. 256, 174 So. 741. After a study of the rules laid down in the two cases cited by defendants in error, and the subsequent cases cited, I am not *Page 360 at all satisfied that they support defendant in error's contention; rather the contrary. Briefly, these rules are (1) that when a cause of action set forth in an amended pleading is new, different and distinct from that originally set up, or (2) when such amendment constitutes a "departure in after pleading" at common law, (which departure occurs when a party quits or departs from the cause of action or defense which he has first made and has recourse to another), in neither case will such an amendment relate back to the beginning of the action, so as to deprive the opposite party of the bar of the statute of limitations which has already operated as against the new claim or cause of action set up in the amendment.
This Court has held in several of the cases cited that one of the tests by which to determine an amended pleading is for the same or a different cause of action stated in the original pleading is whether the same evidence will support a judgment rendered upon either. In this case the same evidence would support a judgment on either the original or amended declaration.
As I see it, there was no change made here in the realcause of action. It was an action at law on a promissory note alleged to have been signed by the defendants. In the body of the declaration it also alleged that "the plaintiff, Camilla Puleston," was the owner and holder of the note, thus showing that the wife was the real party in interest. The action was brought by "Camilla Puleston, by her husband and next friend, S. Puleston," against the three defendants. The only ground of demurrer interposed was "that said declaration presents no cause of action against the above named defendant." There was no *Page 361 demurrer directly raising any question as to any defect or insufficiency as to the party or parties plaintiff. When the cause came on to be heard on the demurrer, the learned trial judge evidently thought that the demurrer was sufficient to raise the question of the defective statement of the party plaintiff, and made an order sustaining the demurrer "for the reason that it affirmatively appears that the action here has not been brought by the married woman." After the announcement of this ruling, on motion of the plaintiff to be allowed to amend to show that the suit was brought by "Camilla Puleston joined by her husband S. Puleston," and it being stated that Camilla Puleston gave her consent to such amendment, the motion to so amend was granted and the defendants were allowed until the August rules, 1939, to plead, at which time the plea of the five year statute of limitations (Sec. 4663, C.G.L.) was interposed as a bar to the cause of action. Motion to strike the plea was overruled.
As a general rule, amendments relate back to the commencement of the action, and Sec. 4646 C.G.L. provides that an action shall be deemed to be commenced when the summons or other original process shall be delivered to the proper officer to be served.
Mr. Justice THOMAS has called attention to the provisions of Sec. 4206 C.G.L. I think the next succeeding Sec. 4207, is also significant here. The action of the court below in allowing this particular amendment was proper. As early as the case of Neal v. Spooner, 20 Fla. 38, this Court approved the action of the trial judge in an ejectment action in allowing an amendment, after the evidence was all in, which inserted after the name of a plaintiff, who was a *Page 362 minor, the words "a minor who sues her next friend, Joseph H. Spooner."
It seems to me that the case of Gibbs v. McCoy, 70 Fla. 245,70 So. 86, is practically conclusive of the present controversy. In the opinion of Mr. Justice WHITFIELD in that case it is said:
"This writ of error is to a judgment for the plaintiffs in an action of ejectment which was brought in the name of W.E. Dunwoody, the grantee of lands, to recover the possession from one in adverse possession of the lands. An amended declaration was subsequently filed by leave of the court making the grantors plaintiffs to recover the possession from one in adverse possession at the time of the conveyance, upon the theory that the conveyance though void as to the defendant in adverse possession of the land, was good as between the parties to the conveyances, and that a recovery in the name of the grantors will inure to the benefit of those claiming under such grantors. (Citing authorities) The amendment did not make a new action, since the real parties in interest and the essential elements of the controversy remain the same. See Neal v. Spooner, 20 Fla. 38; Hamburg v. Liverpool L. G. Ins. Co.,42 Fla. 86, 27 South Rep. 872; Phifer v. Abbott, 69 Fla. 162,67 South Rep. 917; Missouri, K. T. R. Co. v. Wulf,226 U.S. 570, 33 Sup. Ct. Rep. 135; 3 Ency. L. P. 655. The action was not barred by the statute of limitations since the amendment does not present a new action and has relation to the commencement of the suit."
As I see it, the amendment here in question did not make a new cause of action, since the real party in interest and the essential elements of the controversy *Page 363 remain the same. The declaration as originally drafted showed that Camilla Puleston was the owner and holder of the note sued on, and that she was suing "by her husband and next friend, S. Puleston," and in the body of the declaration she is referred to as the plaintiff.
Ordinarily, "Any civil action at law may be maintained in the name of the real party in interest," and "by amendment the nominal plaintiff may be stricken out and the case proceed in the name of the use plaintiff." Section 4201 C.G.L. The "real party in interest" here was Camilla Puleston, but, being a married woman, this particular kind of action should have been brought by "Camilla Puleston, joined by her husband S. Puleston," or "Camilla Puleston and her husband S. Puleston." In equity, a married woman generally sues by next friend, but, in actions at law, except as otherwise provided by statute, the common law rule that the husband must be joined as co-plaintiff with the wife, not as next friend, but as husband, still prevails in this State. Edgar v. Bacon, 97 Fla. 679,122 So. 107, and cases cited; 27 Am. Jur. 203. This is a relic of the old common law doctrine that by marriage husband and wife become one person and the entire legal existence of the woman became merged and incorporated in that of the husband, but under our statutes relating to married women and their property, this legal unity has in some respects been severed, in so far as the statutes have removed the legal disabilities of the wife. However, such acts are not generally construed to otherwise impair the unity of the spouses. 26 A. Jur. 632; 27 Am. Jur. 205. In some classes of cases, our statutes permit married women to sue in their own *Page 364 names. See in this connection Secs. 4203, 4204 and 5865-5867 C.G.L.
But the change in parties plaintiff made by amendment here, by which the husband and the wife were substituted for the original plaintiff — the wife by her husband and next friend, who had attempted to sue on the same note in the first instance, did not in my opinion work a complete change of the "real party in interest," as shown by the original declaration, and certainly did not make any substantial change in the cause of action originally sued on. Therefore in such a case as this I think such an amendment should relate back to the commencement of this action. It is also held that generally a change in the capacity in which a party sues relates back to the commencement of the action. See general trend of authorities in other jurisdictions, as indicated by 21 R.C.L., 584-586; 37 C.J., 1063-1068, which I think tend to support the above conclusions.
I concur in the opinion of Mr. Justice THOMAS and in the judgment of reversal.