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| Estate & Financial Co., App., V. Bankers' SOUTHERN REAL ESTATE & FINAN- Surety Co., Resp. (No. 20430) 207 S. W, 506, CIAL CO. v, BANKERS' SURETY decided at the present term of this court, and CO. (No. 20431.)

the opinion therein is handed down with this

one, (Supreme Court of Missouri, in Banc. October | All of the principal questions involved in this Term, 1918.)

opinion are decided in that case, and the rulAppeal from St. Louis Circuit Court;

ings there are controlling here. Charles B. Davis, Judge.

For the reasons stated in that case, the judgAction by the Southern Real Estate & Finan

ment, in so far as the defendant is concerned, cial Company against the Bankers' Surety Com

is affirmed. pany. Judgment for plaintiff, and defendant

PER CURIAM. The foregoing opinion of cross-appeals. Affirmed.

WOODSON, J., in division No. 1, is adopted Reynolds & Harlan and Lydia Lee, all of St. as the opinion of the court in banc. Louis, for Southern Real Estate & Financial Co.

Jeffries & Corum, of St. Louis, for Bankers' WALKER, GRAVES, and FARIS, JJ., conSurety Co.

cur.

WILLIAMS, J., concurs in result. WOODSON, J. This is a cross-appeal taken BLAIR, J., dissents. by the defendant in the case of Southern Real BOND, O. J., not sitting.

207 S.W.-33

| H. S. Garrett, of San Angelo, H. G. McPOPE et al. v. KANSAS CITY, M. & 0. RY. Connell, of Haskell, and Blanks, Collins & CO. OF TEXAS. (No. 2538.)

Jackson, of San Angelo, for defendant in

error,

(Supreme Court of Texas. Dec. 18, 1918.) 1. COURTS 97(5)-DECISION OF FEDERAL GREENWOOD, J. This was an action by COURT.

the widow and three children of Thos. A. Pope Decision of United States Supreme Court to recover of the Kansas City, Mexico & Ori. involving application and construction of a ent Railway Company of Texas damages for federal statute held decisive, in suit in state the death of Thos. A. Pope while engaged in court, that switching between stations is as the railway company's service as a locomomuch a part of interstate transportation as tive engineer; the death being alleged to movement across state line, and that right of have resulted from the negligence of a conrecovery, if any, for death of employé, killed while switcbing, is in his personal representa- ductor in the employ of the railway comtive.

pany, in giving a certain signal.

The amended original petition, on which 2. MASTER AND SERVANT Om 288(30)-ENGI. the case was tried, did not

whether NEER ENGAGED IN INTERSTATE COMMERCE, the railway company was engaged in interNEGLIGENCE OF CONDUCTOR ASSUMPTION

state or intrastate commerce at the time OF RISK.

Pope received the injuries causing his death, Question whether conductor's negligence was the proximate cause of death of locomotive or whether Pope was then employed in interengineer being under the evidence for the jury, state or intrastate commerce. it cannot be held as a conclusion of law that The amended original answer on which engineer assumed the risk.

the case was tried expressly reserved all of

the railway company's rights under its over3. LIMITATION OF ACTIONS Eww127(6) ruled motion to dismiss and petition to reAMENDMENT-RELATION BACK.

mand the cause to the United States Circuit In action by widow for herself and chil- Court, wherein it was repeatedly averred dren to recover for negligent death of her hus- that Pope's injuries arose while the company band, amendment in behalf of a personal representative of deceased, alleging that deceased

was engaged in interstate commerce and met his death while engaged in interstate com- while Pope was employed by it in such commerce, would not introduce a new or different merce. cause of action barred by limitations, since The uncontradicted evidence disclosed that amendment would relate back to original ac- Pope, when injured, was engaged, as engi. tion, which was not barred.

neer, in switching cars containing freight in 4. PLEADING W403(2)—OMISSIONS IN PETI. process of transportation from Altus, Okl.,

CURE BY PLEADING OF ADVERSE to the railway company's material yards at PARTY.

Sweetwater, Tex. And there was evidence Defect in petition, in action by wife for to the effect that it was because of a signal herself and children to recover for negligent negligently given by the conductor that a coldeath of her husband, in failing to allege that lision occurred between certain moving cars husband was engaged in interstate commerce, and Pope's engine, whereby he received the was cured by affirmative allegations in defend-injuries which caused his death. ant railway company's motion to dismiss peti

The trial court refused the railway comtion to the effect that both husband and company were engaged in interstate commerce when pany's request for a peremptory charge and he was injured.

submitted the case to a jury, who returned a

verdict for plaintiffs in error, for amounts Error to Court of Civil Appeals of Second aggregating $25,000, on findings affirming the Supreme Judicial District.

averments of negligence on the part of the Action by Ethel L. Pope and others against death. The trial court entered a judgment

conductor as the proximate cause of Pope's the Kansas City, Mexico & Orient Railway in accordance with the verdict, which was Company of Texas. Judgment for plaintiffs

reversed by the Court of Civil Appeals, with was reversed and remanded, with directions on appeal to Court of Civil Appeals (152 s. instructions to render judgment for the railW. 185; 153 S. W. 163), and plaintiffs bring way company, if the evidence should be the Judgments of district court and of same on another trial, upon two grounds,

TION

viz.: First, that Pope's death having resulted Court of Civil Appeals reversed, and cause remanded to district court for further pro-ed by the railway company in interstate

from injuries received while he was employceedings.

commerce, only his personal representative Hardwicke & Hardwicke, of Abilene, was entitled to recover; and, second, that Woodruff & Woodruff, of Sweetwater, and the case proven did not support the case Theodore Mack, of Ft. Worth, for plaintiffs pleaded, Chief Justice Conner expressing in error.

no opinion on the latter question. Kansas Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error.

City, M. & O. R. Co. of Texas v. Pope, 152, company, was reversed because the petition S. W. 185, 153 S. W. 163.

"stated a case under the state statute," and [1] Most of the propositions urged by the evidence developed a case “not controlled plaintiffs in error complain of the ruling by the state statute but by the federal statthat only a personal representative could re- ute"; and the case was “remanded for furcover on the facts developed by the evidence. ther proceedings

without prejuThe case of St. Louis, San Francisco & Tex- dice to such rights as a personal representaas Railway Co. v. Sealle is decisive that the tive of the deceased may have.” At the time switching between the station at Sweetwater the order was entered safeguarding the right and the railway company's material yards of the personal representative, more than "was as much a part of the interstate trans- four years had elapsed from the date of portation as was the movement across the Seale's death. After the mandate of the state line," and that “the right of recovery, United States Supreme Court was returned if any, was in the personal representative to the Court of Civil Appeals of the Fifth of the deceased, and no one else could main- Supreme Judicial District of Texas, a motain the action.” 229 U. S. 161, 158, 33 Sup. tion was made for the latter court to render Ct. 653, 652, 57 L. Ed. 1129, Ann. Cas. judgment for the railway company, "on the 1914C, 156. This decision involves the ap- ground that more than two years had elapsplication and construction of a federal stated since the accrual of the right of action, ute and is binding on the state courts. and that the making of the personal repre

Plaintiffs in error also complain of the sentative a party would be the beginning of action of the Court of Civil Appeals in di- a new suit, and was therefore barred by recting the district court to enter a judg- limitations.” The Court of Civil Appeals asment for the railway company, should there signed as their reason for refusing the mobe no change in the evidence. On the other tion that, hand, defendant in error asks that final "The plaintiffs have never had an opportunijudgment be rendered here in its favor on ty to present their case under the ruling of the the two following grounds: First, that the United States Supreme Court. We think it but uncontradicted evidence acquits it of negli- just that they be permitted to so present it, gence and charges the deceased with the as- and decline to here enter judgment reversing sumption of the risk of his death; and, sec

and rendering, but reverse and remand the ond, that no personal representative of Thos. Co. v. Seale, 160 S. W. 318.

case for a new trial." St. L., S. F. & T. Ry. A. Pope can now maintain a suit against the railway company for damages for his death,

Before the new trial, Seale's widow marbased on the federal statute, because the ried one Smith and qualified as administrasame would present a new and different trix of Seale's estate. The administratrix cause of action from that first sued on, and

was then substituted as plaintiff for the forwould be barred by limitation,

mer plaintiffs and filed her amended peti- [2] We have considered the facts in evi- tion, seeking a recovery as before, save in dence and find that the question was for the her new capacity and on the federal, instead jury as to whether the negligence alleged on of the state, statute. She obtained a judgthe part of the conductor was the proximate ment for $7,500, and the railway company, cause of Pope's death; and, if so, it could on appeal, complained that the trial court not be held, as a conclusion of law, that had erred in overruling its special exception Pope assumed the risk. T. & N. 0. Ry. Co. to the petition of the administratrix, because v. Kelly, 98 Tex. 136, 80 S. W. 79; T. & P. it asserted a new cause of action more than Ry. Co. v. Behymer, 189 U. S. 470, 23 Sup. two years after its accrual; and, in support Ct. 622, 47 L. Ed. 905.

of the assignment, the following proposition (3] The contention that an amended peti- was advanced : tion in this case, in behalf of a personal rep

“Appellee's original petition and first and resentative of the deceased, alleging that he

second amended original petitions asserted a met his death while employed in interstate cause of action under the Texas Death Statute. commerce, and while the railway company The third amended original petition asserts a was engaged in such commerce, and making cause of action under the provisions of the fedno other change, would introduce a new or eral Employers' Liability Act which is a new different case of action from that hereto- and distinct cause of action from that assertfore sued on by plaintiffs in error, appears ed in her original pleadings. The third amendunfounded under a decision of this court, ed original petition was filed more than two which has been affirmed by the Supreme years after the cause of action arose, and, un

der the provisions of the federal Employers' Court of the United States.

Liability Act, the same is barred, and appelIn St. L. & S. F. Ry. Co. v. Seale, 229 U. lant's exception to said petition on that acS. 161, 33 Sup. Ct. 633, 57 L. Ed. 1129, Ann. count should have been sustained.” Cas. 1914C, 156, a recovery by the widow and parents of an employé, Seale, for dam- In overruling this proposition and affirmages for his death as the result of the neg-ing the judgment, the Court of Civil Appeals ligence of other employés of the railway said:

"The amendment setting up no new cause when the United States Supreme Court has of action, the statute of limitation did not ap-said exactly the opposite. For the case of ply (Railway Co. v. Davidson, 68 Tex. 370, 4 Illinois Surety Co. v. Peeler, 240 U. S. 214, S. W. 636), and there was no error in the over-36 Sup. Ct. 321, 60 L. Ed. 609, approved in ruling of the exception." St. L., S. F. & T. W. Ry. & Elec. Co. v. Scala, 244 U. S. 640, Ry. Co. v. Smith (Civ. App.) 171 S. W. 513.

37 Sup. Ct. 654, 61 L. Ed. 1360, squarely preOn November 3, 1915, the petition for writ sented the question as to whether an amendof error to review the judgment of the Court ment stated a new or different cause of acof Civil Appeals was refused by this court tion, when it added to the averments of the (108 Tex. 634, 179 S. W. xvi); and on April previous pleadings a fact wholly omitted 16, 1917, the same judgment was affirmed therefrom, which was, by the express terms with costs by the United States Supreme of a federal statute, essential to the stateCourt, in a per curiam opinion, "upon the ment of a right of action under the statute; authority of Missouri, Kansas & Texas Ry, and the opinion stated and answered the Co. v. Wulf, 226 U. S. 570 (33 Sup. Ct. 135, 57 question as follows: L. Ed. 355, Ann, Cas. 1914B, 134]; Seaboard "This action was brought by subcontractors Air Line Ry. v. Koennecke, 239 U. S. 352, under the Act of August 13, 1894, c. 280, 28 354 (36 Sup. Ct. 126, 60 L. Ed. 324]; Sea- Stat. 278, as amended by the Act of February board Air Line Ry. v. Renn, 241 U. S. 290, 24, 1905, c. 778, 33 Stat. 811 [U. S. Comp. St. 293 (36 Sup. Ct. 567, 60 L. Ed. 1006). See St. 1916, § 6923), in the name of the United Louis, San Francisco & Texas Ry. Co. v. The contract was for the construction of a

States to recover upon a contractor's bond. Seale, 229 U. S. 156 (33 Sup. Ct. 651, 57 L. Ed. post office building in Aiken, S. C. (Act of May 1129, Ann. Cas. 1914C, 156)." St. L., S. F. & 30, 1908, c. 228, 35 Stat. 526, 528), and the T. Ry. Co. v. Smith, Adm'x, 243 U. S. 630, 37 | Illinois Surety Company (plaintiff in error) Sup. Ct. 477, 61 L. Ed. 938.

was the surety. The summons and complaint We think that the final ruling in the Seale were filed on March 4, 1913. Motion to disCase is necessarily adverse to the opinions miss was made on September 22, 1913, upon the of the courts who have construed the opinion ground that the complaint did not allege of the United States Supreme Court in that and settlement more than six months, and with

* that there had been such completion case, on the first writ of error, together with in one year, prior to the commencement of the the opinions in the Wyler Case, 158 U. S. action. Another ground for the motion was 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and in the that the remedy under the statute was in equity. Wulf Case, as requiring the holding that an The motion was denied, the court permitting amendment showing that the cause of action the complaint to be amended so as to allege arose under the federal law presented a new that the contract was completed in July, 1912 ; or different cause of action from a petition that final settlement was made by the Treasury stating a cause of action under the state law, suit had been brought by the United States

Department on August 21, 1912; and that no though the facts showing the tort and the against the contractor and his surety within damages therefrom were the same in each the six months' period. The defendant, resertpleading.

ing its objection to the order denying the moThe Wulf Case settled the rule that the tion and allowing the amendment, answered.

the representative ent cause of action; and the opinion in that should be brought by the United States within case, as well as the later opinion in Seaboard six months from the completion and final setAir Line v. Renn, 241 U. S. 290, 36 Sup. Ct. tlement of said contract, then the person or 567, 60 L. Ed. 1006, plainly determined that materials shall, upon application therefor, and

persons supplying the contractor with labor and an amendment which does not set up such a furnishing affidavit,

be furnished different state of facts as the ground of the with a certified copy of said contract and bond, action as to introduce a new or different upon which he or they shall have a right of cause of action will relate back to the be-action, and shall be, and are hereby, authorized ginning of the suit. 226 U. S. 576, 33 Sup. to bring suit in the name of the United States Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134.

* against said contractor and his sure Under the two opinions just mentioned, in ties, and to prosecute the same to final judg. order to sustain the contention urged here it shall not be commenced until after the com

ment and execution; provided, that by the railway company, we would have to plete performance of said contract and final say that to correct the omission in the origi- settlement thereof, and shall be commenced nal petition in this case to plead that the within one year after the performance and final company was engaged, and the deceased was settlement of said contract, and not later. In employed, in interstate commerce, at the date Texas Cement Co. v. McCord, 233 U. S. 157 of the negligence alleged to have caused his 134 Sup. Ct. 550, 58 L. Ed. 893], we said that death, would be not to correct a mere defec- this act created a new right of action upon tive statement of the cause of action arising by creditors before six months had expired from

terms named, and hence that an action brought from the negligence, but would be to intro- the time of the 'completion and final settlement duce a new or different cause of action. It of the contract' could not be sustained. is impossible for us to say that, especially "With respect to the amendment of the com

for dependents introducedhad representatieve )* The statute provides (page 812): "If no suit

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plaint, it is apparent that, as there was an | justice and right of the cause determines its existing right of action under the statute at the decision, and not some technical error or mistime the suit was brought, the case was not take in the pleadings. In England to-day the within the decision in Texas Cement Co. v. amendment complained of in this case would be McCord, supra. No new or different cause of allowed quite as a matter of course, and the action was alleged in the amended complaint. suggestion that the defendant had gained some The court merely permitted the defective state- advantage by the mistake would not be enterment of the existing right to be corrected by tained for a moment. There, as here, every the addition of appropriate allegations, and in error or mistake in the pleadings which does not this there was no error. Rev. Stat. & 954 [U. affect the substantial rights of the adverse parS. Comp. St. 1916, 1591); Missouri, Kan. ty may be cured by amendment; and what is & Tex. Ry. v. Wulf, 226 U. S. 570, 576 [33 meant by substantial right is a right going to Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, the actual merits of the case. Such a right is 134]."

not acquired by a mistake or error in pleadings

which has not misled the other party to his Seaboard Air Line Ry. v. Koennecke, 239 prejudice. And the prejudice must be actual J. S. 354, 36 Sup. Ct. 126, 60 L. Ed. 324, de- and irreparable, and not merely theoretical. At clared that the trial court might well have this day the party who seeks to profit by an considered that the railway company was

error or mistake in pleading must be able to

invoke the principle upon which the law of "endeavoring to get a technical advantage"

estoppel is founded." in resisting "leave to amend so as specifically to bring the case under the Employers' The Supreme Court of Wisconsin concluLiability Act," but that "it would suffer no sively answered the objections made here to wrong" from the court's allowance of the the right to amend, in holding: amendment, for the reason that, while "the

"The point involved upon this appeal, under cause of action arose under a different law the assignments of error, is whether the by the amendment,” yet “the facts consti- amended complaint set up a different cause of tuting the tort were the same, whichever action than that stated in the original comlaw gave them that effect.”

plaint. The contention of the appellant is that The United States Supreme Court appears there is but one cause of action, and that unto have certainly indicated that it would der the federal act, while on the part of the adopt a liberal course in saving substantial respondent it is insisted that the original comrights under the federal Employers' Liability plaint set up a cause of action under the state Act. April 22, 1908, c. 149, 35 Stat. 65 (U. S. a cause of action under the state law to one

law, and that the amendment changed it from Comp. St. 1916, 88 8657-8665), from the bar under the federal act. It is obvious that but of limitation, when it referred in its opinion one cause of action existed upon all the facts in the Wulf Case to McDonald v. Nebraska, stated in the amended complaint. It is equal101 Fed. 171, 41 C. C. A. 278, where the court ly obvious that the original complaint was dedeclared:

fective in failing to state certain facts going to

show that at the time the injury was sustained “In Lottman v. Barnet, 62 Mo. 159, the Su- the parties were engaged in interstate compreme Court said: “Amendments are allowed

Nothing stated in the amended comexpressly to save the cause from the statute of plaint was in conflict or inconsistent with the limitations, and courts have been liberal in allegations of the original complaint. The cause allowing them when the cause of action is not of action upon which the plaintiff sought to retotally different.' * There are in the cover damages was defectively stated in the history of the jurisprudence of every country original complaint, and the defects were cured certain epochs which mark the beginning of by the amendment. But one cause of action distinct trains of legal ideas and judicial con

was stated. The amendment related back to the ceptions of justice. There was a time in Eng. original complaint and became a part of it; land and in this country when the fundamental hence the statute of limitation was no defense." principles of right and justice which courts

Curtice v. C. & N. W. R. Co., 162 Wis. 421, were created to uphold and enforce were es. 156 N. W. 484, L. R. A. 1916D, 318. teemed of minor importance compared to the quibbles, refinements, and technicalities of spe- And, in the Curtice Case, the proper discial pleading. In that period the great funda- tinction was drawn between the right of mentals of the law seemed little, and the tri- amendment here involved and that determinfling things great. The courts were not coned in the Wyler Case, relied on by defendant cerned with the merits of a case, but with in error, when the court said: the mode of stating it. And they adopted so many subtle, artificial, and technical rules “We think a careful examination of Union governing the statement of actions and defense P. R. Co. v. Wyler, supra, will show that it --for the entire system of special pleading was is clearly distinguishable from the instant case. built up by the judges without the sanction of In the Wyler Case the amendment changed not any written law-that in many cases the whole only the cause of action, but the nature and subcontention was whether these rules had been stance of the cause of action. The whole disobserved, and the merits of the case were never cussion in the opinion in the Wyler Case goes reached, and frequently never thought of. Hap- upon the idea that an entirely new and different pily for mankind, and for the law itself, that cause of action cannot be set up by way of epoch is past in England and in this country, amendment, and thus escape the plea of the and we now have an epoch in which substance statute of limitation on the ground that the is more considered than form, in which the new cause of action related back to the time

merce.

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