Meeks v. Southern P. R. R. Co.

         The amendment to the complaint does not state a new cause of action.

         The cause of action was for expenses incurred for the treatment of the son of plaintiff for injuries caused by defendant's negligence. In original complaint the expenses were alleged as that " plaintiff had been compelled to pay." In amendment the allegation is that plaintiff " had incurred and paid," etc. And both refer to the same facts out of which the cause of action arose. (Nevada County & Sac. C. Co. v. Kidd , 28 Cal. 684.) But under the allegation of the complaint no amendment was necessary. (2 Greenleaf on Evidence, Red-field's edition, § 118 and cases cited.) Unless variance likely to mislead the appellant to his prejudice, it is of no moment. (Began v. O'Reilley , 32 Cal. 11.)

         JUDGES: McKinstry, J. Ross and McKee, JJ., concurred.

         OPINION

          McKINSTRY, Judge

         We are inclined to the opinion that defendant's demurrer to the amended complaint was, for certain technical reasons, properly overruled.          But defendant pleaded the limitation of Section 339 of the Code of Civil Procedure.

         No action was brought to recover the sum for which plaintiff had become " liable," for medical attendance, etc., until August 24, 1881, nearly four years after the original complaint was filed. The Court found that plaintiff necessarily incurred liabilities for medical attendance, nursing, etc., in the sum of three hundred and fifty-five dollars prior to the commencement of the action, of which the sum of one hundred and fifteen dollars was paid before the action was brought.

         It follows that the period prescribed by Section 339 of the Code of Civil Procedure, within which the action to recover the sum for which the plaintiff had become liable, but which he had not paid, had elapsed when the amended complaint was filed. The judgment therefore ought to have been for one hundred and fifteen dollars instead of three hundred and fifty-five dollars.

         Ordered that the judgment be modified to accord with the views hereinbefore expressed.