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SOUTHERN REAL ESTATE & FINAN-
CIAL CO. v. BANKERS' SURETY
CO. (No. 20431.)

(Supreme Court of Missouri, in Banc. October Term, 1918.)

Appeal from St. Louis Circuit Court;

Charles B. Davis, Judge.

Action by the Southern Real Estate & Financial Company against the Bankers' Surety Company. Judgment for plaintiff, and defendant cross-appeals. Affirmed.

Reynolds & Harlan and Lydia Lee, all of St. Louis, for Southern Real Estate & Financial Co.

Jeffries & Corum, of St. Louis, for Bankers' Surety Co.

WOODSON, J. This is a cross-appeal taken by the defendant in the case of Southern Real 207 S.W.-33

Estate & Financial Co., App., v. Bankers' Surety Co., Resp. (No. 20430) 207 S. W. 506, decided at the present term of this court, and the opinion therein is handed down with this

one.

All of the principal questions involved in this opinion are decided in that case, and the rul

ings there are controlling here.

For the reasons stated in that case, the judgment, in so far as the defendant is concerned, is affirmed.

PER CURIAM. The foregoing opinion of WOODSON, J., in division No. 1, is adopted as the opinion of the court in banc.

WALKER, GRAVES, and FARIS, JJ., con

cur.

WILLIAMS, J., concurs in result. BLAIR, J., dissents.

BOND, O. J., not sitting.

H. S. Garrett, of San Angelo, H. G. Mc

POPE et al. v. KANSAS CITY, M. & O. RY. Connell, of Haskell, and Blanks, Collins &
CO. OF TEXAS. (No. 2538.)
Jackson, of San Angelo, for defendant in
(Supreme Court of Texas. Dec. 18, 1918.)

[blocks in formation]

error.

GREENWOOD, J. This was an action by the widow and three children of Thos. A. Pope to recover of the Kansas City, Mexico & Orient Railway Company of Texas damages for the death of Thos. A. Pope while engaged in the railway company's service as a locomotive engineer; the death being alleged to have resulted from the negligence of a conductor in the employ of the railway company, in giving a certain signal.

The amended original petition, on which the case was tried, did not allege whether the railway company was engaged in inter

state or intrastate commerce at the time Pope received the injuries causing his death, or whether Pope was then employed in interstate or intrastate commerce.

The amended original answer on which the case was tried expressly reserved all of the railway company's rights under its overruled motion to dismiss and petition to re

mand the cause to the United States Circuit

Court, wherein it was repeatedly averred that Pope's injuries arose while the company was engaged in interstate commerce and while Pope was employed by it in such commerce.

The uncontradicted evidence disclosed that Pope, when injured, was engaged, as engineer, in switching cars containing freight in process of transportation from Altus, Okl., to the railway company's material yards at Sweetwater, Tex. And there was evidence to the effect that it was because of a signal negligently given by the conductor that a collision occurred between certain moving cars and Pope's engine, whereby he received the injuries which caused his death.

The trial court refused the railway company's request for a peremptory charge and 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
conductor as the proximate cause of Pope's
death. The trial court entered a judgment
in accordance with the verdict, which was
reversed by the Court of Civil Appeals, with
instructions to render judgment for the rail-
way company, if the evidence should be the
same on another trial, upon two grounds,
viz.:
from injuries received while he was employ-
: First, that Pope's death having resulted

Action by Ethel L. Pope and others against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs was reversed and remanded, with directions on appeal to Court of Civil Appeals (152 S. W. 185; 153 S. W. 163), and plaintiffs bring error. Judgments of district court and of Court of Civil Appeals reversed, and cause remanded to district court for further pro-ed by the railway company in interstate ceedings.

Hardwicke & Hardwicke, of Abilene, Woodruff & Woodruff, of Sweetwater, and Theodore Mack, of Ft. Worth, for plaintiffs in error.

commerce, only his personal representative was entitled to recover; and, second, that the case proven did not support the case pleaded, Chief Justice Conner expressing no opinion on the latter question. Kansas

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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

[1] Most of the propositions urged by plaintiffs in error complain of the ruling that only a personal representative could recover on the facts developed by the evidence. The case of St. Louis, San Francisco & Texas Railway Co. v. Seale is decisive that the switching between the station at Sweetwater and the railway company's material yards "was as much a part of the interstate transportation as was the movement across the state line," and that "the right of recovery, if any, was in the personal representative of the deceased, and no one else could maintain the action." 229 U. S. 161, 158, 33 Sup. Ct. 653, 652, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. This decision involves the application and construction of a federal statute and is binding on the state courts.

Plaintiffs in error also complain of the action of the Court of Civil Appeals in directing the district court to enter a judgment for the railway company, should there be no change in the evidence. On the other hand, defendant in error asks that final judgment be rendered here in its favor on the two following grounds: First, that the uncontradicted evidence acquits it of negligence and charges the deceased with the assumption of the risk of his death; and, second, that no personal representative of Thos. A. Pope can now maintain a suit against the railway company for damages for his death, based on the federal statute, because the same would present a new and different cause of action from that first sued on, and would be barred by limitation.

[2] We have considered the facts in evidence and find that the question was for the jury as to whether the negligence alleged on the part of the conductor was the proximate cause of Pope's death; and, if so, it could not be held, as a conclusion of law, that Pope assumed the risk. T. & N. O. Ry. Co. v. Kelly, 98 Tex. 136, 80 S. W. 79; T. & P. Ry. Co. v. Behymer, 189 U. S. 470, 23 Sup. Ct. 622, 47 L. Ed. 905.

"stated a case under the state statute," and the evidence developed a case "not controlled by the state statute but by the federal statute"; and the case was "remanded for further proceedings * * without prejudice to such rights as a personal representative of the deceased may have." At the time the order was entered safeguarding the right of the personal representative, more than four years had elapsed from the date of Seale's death. After the mandate of the United States Supreme Court was returned to the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, a motion was made for the latter court to render judgment for the railway company, "on the ground that more than two years had elapsed since the accrual of the right of action, and that the making of the personal representative a party would be the beginning of a new suit, and was therefore barred by limitations." The Court of Civil Appeals assigned as their reason for refusing the motion that

"The plaintiffs have never had an opportunity to present their case under the ruling of the United States Supreme Court. We think it but just that they be permitted to so present it, and decline to here enter judgment reversing and rendering, but reverse and remand the Co. v. Seale, 160 S. W. 318. case for a new trial." St. L., S. F. & T. Ry.

Before the new trial, Seale's widow married one Smith and qualified as administratrix of Seale's estate. The administratrix was then substituted as plaintiff for the former plaintiffs and filed her amended petition, seeking a recovery as before, save in her new capacity and on the federal, instead of the state, statute. She obtained a judgment for $7,500, and the railway company, on appeal, complained that the trial court had erred in overruling its special exception to the petition of the administratrix, because it asserted a new cause of action more than two years after its accrual; and, in support of the assignment, the following proposition was advanced :

[3] The contention that an amended petition 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 unfounded under a decision of this court, which has been affirmed by the Supreme

Court of the United States.

In St. L. & S. F. Ry. Co. v. Seale, 229 U. S. 161, 33 Sup. Ct. 653, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, a recovery by the widow

ed in her original pleadings. The third amended original petition was filed more than two years after the cause of action arose, and, under the provisions of the federal Employers' Liability Act, the same is barred, and appellant's exception to said petition on that account should have been sustained."

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 of action, the statute of limitation did not apply (Railway Co. v. Davidson, 68 Tex. 370, 4 S. W. 636), and there was no error in the overruling of the exception." St. L., S. F. & T. Ry. Co. v. Smith (Civ. App.) 171 S. W. 513.

On November 3, 1915, the petition for writ of error to review the judgment of the Court of Civil Appeals was refused by this court (108 Tex. 634, 179 S. W. xvi); and on April 16, 1917, the same judgment was affirmed with costs by the United States Supreme Court, in a per curiam opinion, "upon the authority of Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570 [33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134]; Seaboard Air Line Ry. v. Koennecke, 239 U. S. 352, 354 [36 Sup. Ct. 126, 60 L. Ed. 324]; Seaboard Air Line Ry. v. Renn, 241 U. S. 290, 293 [36 Sup. Ct. 567, 60 L. Ed. 1006]. See St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156 [33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156]." St. L., S. F. & T. Ry. Co. v. Smith, Adm'x, 243 U. S. 630, 37 Sup. Ct. 477, 61 L. Ed. 938.

We think that the final ruling in the Seale Case is necessarily adverse to the opinions of the courts who have construed the opinion of the United States Supreme Court in that case, on the first writ of error, together with the opinions in the Wyler Case, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and in the Wulf Case, as requiring the holding that an amendment showing that the cause of action arose under the federal law presented a new or different cause of action from a petition stating a cause of action under the state law, though the facts showing the tort and the damages therefrom were the same in each pleading.

The Wulf Case settled the rule that the substitution of the personal representative for dependents introduced no new or different cause of action; and the opinion in that case, as well as the later opinion in Seaboard Air Line v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006, plainly determined that an amendment which does not set up such a different state of facts as the ground of the action as to introduce a new or different cause of action will relate back to the beginning of the suit. 226 U. S. 576, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. Under the two opinions just mentioned, in order to sustain the contention urged here by the railway company, we would have to say that to correct the omission in the original petition in this case to plead that the company was engaged, and the deceased was employed, in interstate commerce, at the date of the negligence alleged to have caused his death, would be not to correct a mere defective statement of the cause of action arising from the negligence, but would be to introduce a new or different cause of action. It is impossible for us to say that, especially

when the United States Supreme Court has said exactly the opposite. For the case of Illinois Surety Co. v. Peeler, 240 U. S. 214, 36 Sup. Ct. 321, 60 L. Ed. 609, approved in W. Ry. & Elec. Co. v. Scala, 244 U. S. 640, 37 Sup. Ct. 654, 61 L. Ed. 1360, squarely presented the question as to whether an amendment stated a new or different cause of action, when it added to the averments of the previous pleadings a fact wholly omitted therefrom, which was, by the express terms of a federal statute, essential to the statement of a right of action under the statute; and the opinion stated and answered the question as follows:

"This action was brought by subcontractors under the Act of August 13, 1894, c. 280, 28 Stat. 278, as amended by the Act of February 24, 1905, c. 778, 33 Stat. 811 [U. S. Comp. St. 1916, § 6923], in the name of the United The contract was for the construction of a States to recover upon a contractor's bond. post office building in Aiken, S. C. (Act of May 30, 1908, c. 228, 35 Stat. 526, 528), and the Illinois Surety Company (plaintiff in error) was the surety. The summons and complaint were filed on March 4, 1913. Motion to dismiss was made on September 22, 1913, upon the ground that the complaint did not allege and settlement more than six months, and with* that there had been such completion in one year, prior to the commencement of the action.

that the remedy under the statute was in equity. Another ground for the motion was The motion was denied, the court permitting the complaint to be amended so as to allege that the contract was completed in July, 1912; that final settlement was made by the Treasury suit had been brought by the United States Department on August 21, 1912; and that no against the contractor and his surety within the six months' period. The defendant, reserving its objection to the order denying the motion and allowing the amendment, answered. * *

affidavit,

"The statute provides (page 812): 'If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and furnishing materials shall, upon application therefor, and with a certified copy of said contract and bond. * be furnished upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the United States ** * against said contractor and his sureties, and to prosecute the same to final judgit shall not be commenced until after the comment and execution; provided, that * * plete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later.' In Texas Cement Co. v. McCord, 233 U. S. 157 [34 Sup. Ct. 550, 58 L. Ed. 893], we said that this act created a new right of action upon by creditors before six months had expired from terms named, and hence that an action brought the time of the 'completion and final settlement of the contract' could not be sustained.

"With respect to the amendment of the com

plaint, it is apparent that, as there was an existing right of action under the statute at the time the suit was brought, the case was not within the decision in Texas Cement Co. v. McCord, supra. No new or different cause of action was alleged in the amended complaint. The court merely permitted the defective statement of the existing right to be corrected by the addition of appropriate allegations, and in this there was no error. Rev. Stat. § 954 [U. S. Comp. St. 1916, § 1591]; Missouri, Kan. & Tex. Ry. v. Wulf, 226 U. S. 570, 576 [33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134]."

Seaboard Air Line Ry. v. Koennecke, 239 J. S. 354, 36 Sup. Ct. 126, 60 L. Ed. 324, declared that the trial court might well have considered that the railway company was "endeavoring to get a technical advantage" in resisting "leave to amend so as specifically to bring the case under the Employers' Liability Act," but that "it would suffer no wrong" from the court's allowance of the amendment, for the reason that, while "the cause of action arose under a different law by the amendment," yet "the facts constituting the tort were the same, whichever law gave them that effect."

The United States Supreme Court appears to have certainly indicated that it would adopt a liberal course in saving substantial rights under the federal Employers' Liability Act. April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657-8665), from the bar of limitation, when it referred in its opinion in the Wulf Case to McDonald v. Nebraska, 101 Fed. 171, 41 C. C. A. 278, where the court declared:

"In Lottman v. Barnet, 62 Mo. 159, the Supreme Court said: 'Amendments are allowed expressly to save the cause from the statute of limitations, and courts have been liberal in allowing them when the cause of action is not totally different.' * ** There are in the history of the jurisprudence of every country certain epochs which mark the beginning of distinct trains of legal ideas and judicial conceptions of justice. There was a time in England and in this country when the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading. In that period the great fundamentals of the law seemed little, and the trifling things great. The courts were not concerned with the merits of a case, but with the mode of stating it. And they adopted so many subtle, artificial, and technical rules governing the statement of actions and defense -for the entire system of special pleading was built up by the judges without the sanction of any written law-that in many cases the whole contention was whether these rules had been observed, and the merits of the case were never reached, and frequently never thought of. Happily for mankind, and for the law itself, that epoch is past in England and in this country, and we now have an epoch in which substance is more considered than form, in which the

justice and right of the cause determines its decision, and not some technical error or mistake in the pleadings. In England to-day the amendment complained of in this case would be allowed quite as a matter of course, and the suggestion that the defendant had gained some advantage by the mistake would not be entertained for a moment. There, as here, every error or mistake in the pleadings which does not affect the substantial rights of the adverse party may be cured by amendment; and what is meant by substantial right is a right going to the actual merits of the case. Such a right is not acquired by a mistake or error in pleadings which has not misled the other party to his prejudice. And the prejudice must be actual and irreparable, and not merely theoretical. At this day the party who seeks to profit by an invoke the principle upon which the law of error or mistake in pleading must be able to estoppel is founded."

The Supreme Court of Wisconsin conclusively answered the objections made here to the right to amend, in holding:

"The point involved upon this appeal, under the assignments of error, is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action, and that under the federal act, while on the part of the respondent it is insisted that the original comlaw, and that the amendment changed it from plaint set up a cause of action under the state a cause of action under the state law to one under the federal act. It is obvious that but one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained the parties were engaged in interstate commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint, and the defects were cured by the amendment. But one cause of action

was stated. The amendment related back to the original complaint and became a part of it; hence the statute of limitation was no defense." Curtice v. C. & N. W. R. Co., 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 318.

And, in the Curtice Case, the proper distinction was drawn between the right of amendment here involved and that determined in the Wyler Case, relied on by defendant in error, when the court said:

"We think a careful examination of Union P. R. Co. v. Wyler, supra, will show that it is clearly distinguishable from the instant case. In the Wyler Case the amendment changed not only the cause of action, but the nature and substance of the cause of action. The whole discussion in the opinion in the Wyler Case goes upon the idea that an entirely new and different cause of action cannot be set up by way of amendment, and thus escape the plea of the statute of limitation on the ground that the new cause of action related back to the time

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