R.D. 169. Nor do we perceive how the fact that the plaintiff received large amounts of compensation for his injuries while this suit was pending is at all relevant to the motion to amend. This argument itself concedes that the defendant elected to pay the plaintiff compensation, knowing that it was being sued by the plaintiff. If in so doing the defendant relied upon the defects in plaintiff's original complaint, it should also have been aware that complaints are freely amended under the Federal Rules of Civil Procedure. Donnelly Garment Co. v. International Ladies' Garment Workers' Union et al., D.C.W.D.Mo.1941, 47 F.Supp. 61.
The defendant's fourth ground of objection is that the plaintiff's deposition shows that the plaintiff himself could not say with certainty that Osterberger intended to injure him. Therefore, argues defendant, allowing the amendment would be a futile gesture, since its allegations could not be proven. We think this argument can only be resolved at the trial of this case. That is to say, the question of whether the amended complaint can be sufficiently supported by evidence can only be determined after the plaintiff has had his day in Court. The plaintiff's deposition does show that the proposed amendments to the complaint have some foundation in fact, and, therefore, the amended complaint cannot be considered as a frivolous or sham pleading.
Defendant's third objection is that the amended complaint states a 'new cause of action' which is now barred because the statute of limitations has run. This contention is governed by Rule 15(c) of the Federal Rules of Civil Procedure which provides as follows:
'(c) Relation Back of Amendments.
'Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.'
Rule 15(c), like the other rules of civil procedure, does not use the phrase 'cause of action.' While it is still the rule that an amendment to a pleading which states an entire new claim for relief will not relate back to the date of the filing of the original complaint, the Federal rules have broadened the meaning of the concept of 'cause of action.' The rules have shifted emphasis away from a theory of law as to the cause of action to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. (Moore's Federal Practice, Vol. 3, p. 852.) Therefore, it is really unnecessary to determine whether the amended complaint states a 'new cause of action.' Applying the test set forth in Rule 15(c), it is clear in the case at bar that the claim asserted in the amended complaint arose out of the same occurrence set forth in the original complaint. Therefore, the amended complaint relates back to the date of the original complaint and is not barred by the statute of limitations.
The Supreme Court of the United States held in the case of Tiller v. Atlantic Coast Line Railroad Co., 1945, 323 U.S. 574, 65 S. Ct. 421, 89 L. Ed. 465, that the plaintiff could amend her complaint to add an allegation of violation of the Boiler Inspection Act, 45 U.S.C.A. § 22 et seq., even though the statute of limitations had run. The Court said that there was no reason to apply a statute of limitations where the defendant had had notice from the beginning that the plaintiff was trying to enforce a claim against it because of the events leading up to the death of the plaintiff's decedent in the defendant's yard. The reasoning of the Court in the Tiller case applies to the case at bar; the defendant has had notice since the filing of the original complaint that the plaintiff Chamberlin was trying to enforce a claim against it arising from the accident which occurred on January 23, 1958, at the site of defendant's construction job.
In the case of Carroll v. Sterling Hotel Co., D.C.M.D.Pa.1954, 16 F.R.D. 99, the plaintiff alleged in his original complaint that he had injured his back in twisting away from a stream of scalding water which suddenly emitted from defendant's shower bath. After the statute of limitations had run, plaintiff was permitted to amend the complaint by adding that he injured his back when he fell on a piece of soap while trying to escape the scalding water. The court had no difficulty allowing the amendment, stating:
'Both the original complaint and the amended complaint relate to the same general conduct, transaction and occurrence which involved the the injuries to the plaintiff. * * * The cause of action now, as it was in the beginning, is the same -- it is a suit to recover damages for injuries sustained by the plaintiff, caused by the alleged negligence of the defendant. * * * The effect of the amendment will facilitate a fair trial of the existing issues between plaintiff and defendant.'
At page 100.
In conclusion, we think the Rules of Civil Procedure and the cases decided thereunder indicate strongly that the plaintiff should be permitted to file the proposed amended complaint. However, in the interest of fairness to counsel for defendant, we cannot overlook the fact that plaintiff's counsel has heretofore occasioned considerable delay, expense, and inconvenience to the defendant. Therefore, we think it appropriate to include an Order herein requiring the plaintiff to post security for costs. Local Rule 35 of the Rules of Civil Procedure for the Eastern District of Pennsylvania specifically permits us to do so in any case in which the plaintiff was not a resident of the Eastern District of Pennsylvania at the time suit was brought. Plaintiff, Earl Chamberlin, was a resident of the State of New Jersey at the time this action was instituted. Therefore, we enter the following Order:
And now, to wit, this 31st day of May, 1961, it is ordered that the plaintiff be permitted to file the proposed amended complaint and the defendant's objections thereto are hereby overruled.
Plaintiff is ordered to deposit $ 150 as security for costs within 30 days from the entry of this Order and all proceedings are to be stayed meanwhile.