Edward Douglass White

“ A suit based upon a cause of action alleged to result from the general law of master and servant was not a suit to enforce an exceptional right given by the law of Kansas. If the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow servant, then the averment of negligence apart from incompetency was a departure from fact to fact, and, therefore, a new cause of action. ”

“ The statute of the state of Kansas which makes employers operating a railroad liable to one servant for the neglect of another, without regard to the rule of incompetency as above stated, is clearly in derogation of the general law, which, as we have said, prevails in Missouri where the action was originally brought. ”

“ An action of assumpsit was changed by amendment into an action of debt. The conclusion was that the amendment was a new cause of action. Crofford v. Cothran, 2 Sneed, 492. At common law no action lies in favor of one person for the death of another. A statute allowed such an action to be brought in the name of a personal representative. By mistake an action of this kind was brought in the name of the wife of a person who had been killed. It was amended so as to make the personal representative the nominal plaintiff. ”