1 Reported in 206 N.W. 945. Plaintiff's intestate, Mrs. Edelbrock, died April 19, 1921, from burns received 15 days before in an explosion caused by the alleged negligence of defendant and its servants. This action to recover damages sustained by her husband and minor children was instituted in April the next year. The original complaint, in addition to the allegations that death was caused by defendant's negligence in furnishing the deceased with gasolene instead of kerosene for fuel, alleged that she was in the employ of defendant as a cook for a bridge crew and was engaged in interstate commerce as was defendant at the time the injury was received. The facts alleged would authorize a recovery either under G.S. 1923, § 9657, the Lord Campbell statute, or under the Federal Employers Liability Act according as the evidence would warrant.
When the case was reached for trial in July, 1922, the complaint was amended so as to indicate that plaintiff relied on the state act covering employes of railroads engaged in intrastate commerce rather than employes protected by the act of Congress. The court submitted the case to the jury on the proposition that a recovery rested wholly upon a finding that Mrs. Edelbrock was an employe of defendant when she was injured. The jury so found and returned a verdict for plaintiff. This was set aside on appeal for lack of satisfactory proof of the existence of the relation of master and servant, the court saying:
"Therefore, there must be a new trial, wherein the sole issues will concern the alleged negligence of defendant and the contributory negligence, if any, of Mrs. Edelbrock. If she were guilty of contributory negligence, it is an absolute defense, whereas the jury was *Page 3 charged, and properly under the statute, that, it being assumed that there was some proof of relationship of employer and employe, Mrs. Edelbrock's negligence, if any, was not an absolute defense, but partial only and to be considered upon the comparative negligence basis." Edelbrock v. M. St. P. S.S.M. Ry. Co. 158 Minn. 25, 196 N.W. 807.
In 1925 when the case was again reached for trial plaintiff, over objection, was again permitted to amend the complaint by eliminating all the allegations of employment by defendant of Mrs. Edelbrock. Thereupon defendant demurred to the amended complaint. The court overruled the demurrer, certifying that the question was important and doubtful, and defendant appeals.
Notwithstanding the earnest oral argument and exhaustive brief of defendant's counsel, we fail to see either how a question of legal importance or doubt can be raised by this demurrer. The demurrer is predicated upon the claim that by the amendment of the complaint in 1925 a new cause of action for wrongful death under G.S. 1923, § 9657, was for the first time stated, and hence shown to be barred by the two-year limitation therein contained. It would seem to be impossible to state a new cause of action by merely striking out allegations from a pleading. What was added by the amendment of paragraph 3 was merely of evidentiary facts relating to defendant's negligence in the furnishing of gasolene instead of kerosene; the rest of the paragraph was simply an elimination of the allegation that decedent was employed by defendant. What remained, if it stated any cause of action, was certainly there from the time the expurgated pleading was served in July, 1922. Again, the allegation in the original complaint that decedent's death was caused by the negligence of the defendant in furnishing her with gasolene instead of kerosene for fuel purposes always remained in the pleading after every amendment, and hence there is no possible chance for invoking the two-year limitation provision. Moreover, plaintiff never had but one cause of action, namely, for the wrongful death of his intestate. Negligence of defendant was the basis for it. If he could establish the relation of master and servant *Page 4 between defendant and Mrs. Edelbrock, it was of advantage, but he was not necessarily defeated if he should fail in such proof. If he could establish that defendant's negligence proximately caused the death and defendant failed to prove contributory negligence of deceased, there still should be a recovery.
Apparently the former decision by this court construed the complaint as it then stood as stating facts sufficient for a recovery under the Lord Campbell statute, so called. For, being satisfied that the plaintiff had adduced all the proof possible to establish the relation of master and servant and that it was insufficient, judgment non obstante was denied, and a new trial granted, the court, in the quoted part of the opinion, expressly recognizing that the issues in the complaint, bringing the cause of action within G.S. 1923, § 9657, had not been tried. Tuder v. O.S.L. Ry. Co. 131 Minn. 317, 155 N.W. 200, clearly shows that a complaint like this, as amended in July, 1922, stated but one cause of action, even though facts were alleged which might authorize a recovery either under said § 9657 or under our state employers liability act covering intrastate railroad operations (L. 1915, p. 253, c. 187), as amended, G.S. 1923, §§ 4933-4940, and hence that it was improper to compel a plaintiff to elect at the beginning of the trial, under which section recovery was sought. Nash v. M. St. P. Ry. Co. 141 Minn. 148, 169 N.W. 540, is also decisive against appellant upon the question presented by the demurrer. Strand v. C.G.W. Ry. Co. 147 Minn. 1, 179 N.W. 369, is to the same effect.
Herr v. C.M. St. P. Ry. Co. 154 Minn. 182, 191 N.W. 607, is not in point, for there the pleader, recognizing that the action was barred if his client must rely on the state employers liability act, expressly renounced any claim thereunder. It was held that, as a railroad employe, his exclusive right of recovery for injuries sustained in the employment was within that act, and the limitation of § 4940 therein, applied. In Lombard v. N.P. Ry. Co. 160 Minn. 1, 199 N.W. 887, the proof brought the decedent within the state employers liability act, and therefore the limitation of the damages in *Page 5 § 9657 did not apply. Neither case involved the amendment of a complaint brought for death or injury caused by the negligence of the defendant therein.
Order affirmed.