Poncot v. St. Louis, Iron Mountain & Southern Railway Co.
Missouri Court of Appeals
Appeal from Jasper County Circuit Court, Division Number Two.—Hon. D. E. Blair, Judge. (1) There are two tests by which to determine whether an amended petition is a departure from the original and states a new cause of action: First, whether the same evidence will support the petitions, and second, whether the same measure of damages will apply to both. If these tests are answerable in the affirmative it is an amendment; if in the negative it is a substitution.
Read the full summary
Appeal from Jasper County Circuit Court, Division Number Two.—Hon. D. E. Blair, Judge. (1) There are two tests by which to determine whether an amended petition is a departure from the original and states a new cause of action: First, whether the same evidence will support the petitions, and second, whether the same measure of damages will apply to both. If these tests are answerable in the affirmative it is an amendment; if in the negative it is a substitution. Liese v. Meyers, 143 Mo. 547; Robertson v. Springfield & S. R. Co., 21 Mo. App. 633; Walker v. Railroad, 193 Mo. 472; Grigsby v.…
1Concurrence
SEPARATE CONCURRING OPINION.
STURGIS, J.
I fully concur with Robertson, P. J., in the foregoing opinion and think the case should be affirmed for another reason.
Even if the motion to strike out the amended petition be regarded as having the force and effect of a demurrer and for- that reason no motion for a new trial is necessary, yet the action of the court should be sustained for the reason that the amended petition so stricken out does not state facta sufficient to constitute a cause of action. The amended petition in effect alleges that the defendant constructed an embankment east and west…
2Cases cited2 opinions
- Ranney v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1909
- Cooper v. St. Louis, Memphis & Southeastern Railway Co.Missouri Court of Appeals · 1907