Opinion
March 5, 1965 —
March 30, 1965.
APPEAL from a judgment of the circuit court for Walworth county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellants there was a brief by Habush, Gillick Habush, and oral argument by Howard A. Davis, all of Milwaukee.
For the respondent there was a brief by Foley, Capwell, Foley Kolbe of Racine, and oral argument by Rex Capwell.
This is an action to recover for injuries allegedly sustained by Dolores Johnson on December 3, 1960. The event took place at a meeting of the Elkhorn Literary Society in the Sterlingworth Hotel, Elkhorn, Wisconsin. The plaintiffs aver that defendant William O'Donell became intoxicated and entered into an altercation with another patron. During the course of this disturbance, Mrs. Johnson was allegedly knocked to the floor, receiving the injuries complained of.
The original complaint, dated November 27, 1963, stated that the defendant William O'Donell "without any cause or provocation on the part of the plaintiff, Dolores Johnson, assaulted her as she was proceeding from the dining room through the bar." The defendant O'Donell demurred to the complaint, setting forth the two-year limitation on assault actions. Sec. 330.21(2), Stats.
The plaintiffs obtained leave to file an amended complaint and, on April 13, 1964, served the amended complaint, which alleged that the defendant O'Donell "carelessly, recklessly and negligently pushed the plaintiff, Dolores Johnson," causing her injuries.
Mr. O'Donell filed a plea in bar, and in the alternative answered the plaintiffs' complaint. The plea in bar demanded judgment dismissing the amended complaint on the grounds that the three-year statute of limitations (sec. 330.205, Stats.) bars the plaintiffs' cause of action for personal injury.
A formal motion for summary judgment based on sec. 330.205, Stats., was filed and heard, and judgment was entered on October 26, 1964, dismissing that portion of the plaintiffs' complaint which set forth a cause of action against the defendant William O'Donell. It is from this judgment that the appellants appeal.
To avoid the impact of the statute of limitations, the plaintiffs have urged that their amended complaint should relate back to the date of their original complaint.
The original complaint was served on a date beyond the two-year limitations period prescribed for an assault action in sec. 330.21(2), Stats. When confronted with a demurrer to the original complaint, the plaintiffs amended their claim so as to allege that Dolores Johnson's injuries were caused by Mr. O'Donell's "carelessly, recklessly and negligently" pushing her. If it can relate back to the date on which the original complaint was served, the amended complaint was within the three-year period prescribed for injuries to the person in sec. 330.205.
The governing rule in Wisconsin was asserted in Meinshausen v. A. Gettelman Brewing Co. (1907), 133 Wis. 95, 102, 113 N.W. 408, where the court said that an amendment:
". . . which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only required in his pleading to state the facts which constitute his cause of action."
The rule of the Meinshausen Case has been frequently applied in subsequent decisions. Perlson v. Dairyland Mut. Ins. Co. (1964), 23 Wis.2d 391, 398, 127 N.W.2d 69; Lealiou v. Quatsoe (1961), 15 Wis.2d 128, 135, 112 N.W.2d 193; Fredrickson v. Kabat (1953), 264 Wis. 545, 547, 59 N.W.2d 484; Halvorson v. Tarnow (1950), 258 Wis. 11, 13, 44 N.W.2d 577; Kresge v. Miner Amusement Co. (1942), 239 Wis. 575, 579, 2 N.W.2d 236; Hafemann v. Seymer (1926), 191 Wis. 174, 210 N.W. 373; Curtice v. Chicago N.W. R. Co. (1916), 162 Wis. 421, 156 N.W. 484.
The original complaint was based upon an assault. That the plaintiffs recognized this is suggested by the fact that they amended their complaint after a pleading by Mr. O'Donell pointed out that the assault claim was barred by the two-year provision of sec. 330.21(2), Stats. The plaintiffs' effort to have us read the original complaint as one averting negligence is not persuasive.
The amended complaint does sound in negligence. It is a different cause of action than the intentional wrong (assault) originally alleged. It is not fairly to be labeled an expansion or mere variation of an assault. The facts which would be relied upon to establish the original complaint are undoubtedly identical or closely related to those to be used to establish the amended claim; nevertheless, the cause of action is inherently new and different; relation back does not apply. The Hafemann Case, supra, is particularly applicable to the case at bar insofar as it distinguishes between gross negligence and ordinary negligence; the same distinction can be made as to intentional and unintentional wrongs.
In our opinion, the trial court properly granted summary judgment to Mr. O'Donell, since the plaintiffs' claim against him under the amended complaint was untimely under sec. 330.205, Stats.
By the Court. — Judgment affirmed.