« EelmineJätka »
of filing the complaint. But the facts in the the plaintiff is entitled to the judgment, alWyler Case and the reasoning in the opinion though his own pleading, taken by itself is have no application to a case where there is insufficient.” Ry. Co. v. Anderson, 76 Tex. but one cause of action, which is defectively 252, 13 S. W. 196; Fertilizer Co. v. Bank, 104 stated and the defect cured by amendment." Tex. 191; Ry. Co. v. Miller (Tex. Civ.) 128 S. 162 Wis. 425, 156 N. W. 486, L, R. A. 1916D, W. 1170; Ry. Co. v. Fife (Civ. App.) 147 S. 318.
The United States Supreme Court, on May
The following are among the cases which 20, 1918, denied a petition for a writ of certi- apply the rule stated to facts in all material orari to the Supreme Court of Wisconsin respects like those of this case: King v. to review its judgment in Curtice's Case. Norfolk & S. R. Co. (N. C.) 97 S. E. 30; C. & N. W. Ry. Co. v. Curtice; 247 U. S. 510, Curtice v. C. & N. W. R. Co., 162 Wis. 421, 38 Sup. Ct. 578, 62 L. Ed. 1242.
156 N. W. 484, L. R. A. 1916D, 318; White Under the settled rules of pleading and
v. Central Vermont Ry. Co., 87 Vt. 330, 89 practice in this state, the right to amend, Atl. 621. In affirming the judgment of the so as to defeat limitation, when interposed Supreme Court of Vermont in the latter against the cause of action which accrued, case, the United States Supreme Court anunder the federal statute, to the representa- nounced that the decision of the state Sutive of Pope's estate, cannot be doubted. preme Court with respect to aider of a plead
Thouvenin y. Lea, 26 Tex, 615, announces ing seeking to recover damages for a death the principle, always adhered to by this under the federal Employers' Liability Act, court, that
by an allegation in an answer thereto and "The very object of an amendment is to sup- by a replication to such answer, being con ply the omissions of the original pleadings. a matter of state pleading and practice, is And it never has been supposed that the stat-binding on this court." Central Vermont Ry. ute of limitations would present any impedi- v. White, 238 U. S. 513, 35 Sup. Ct. 865, 59 ment to its being done at any time during the L. Ed. 1433, Ann. Cas. 1916B, 252. progress of the cause. The statute only oper- The judgments of the district court and of ates as a bar when it is sought under the name the Court of Civil Appeals will be reversed, of an amendment to present a new suit.” Trib- and the cause is remanded to the district by v. Wokee, 74 Tex. 144, 11 S. W. 1089.
court for further proceedings, not inconsisThe principle has been repeatedly applied tent with this opinion, and without prejudice in Texas to save causes of action from the to such rights as a personal representative bar of limitation, when such causes of ac
of Thos. A. Pope, the deceased, may have. tion were presented in amendments filed after the expiration of the statutory period, notwithstanding the original pleadings, which were filed within the statutory period, were so lacking in averments essential to the
BIRD y. FT. WORTH & R. G. RY. CO. statement of a cause of action as to be bad
(No. 3137.) on general demurrer. W. U. Tel. Co. v.
(Supreme Court of Texas. Dec. 18, 1918.) Smith (Civ. App.) 146 S. W. 333; Boyd v. Beville, 91 Tex. 443, 444, 44 S. W. 287; Big- 1. LIMITATION OF ACTIONS Eww127(6)—AMENDham v. Talbot, 63 Tex. 273.
MENT-RELATION BACK,  We are also of the opinion that the
In action for death of her husband, amend. defect, now under consideration, in the orig- ed petition, whereby wife as administratrix was inal petition of plaintiffs in error, was cured substituted for former plaintiff and whereby she by the affirmative allegations in the railway and deceased was employed, in interstate com
expressly alleged that defendant was engaged, company's motion to dismiss and petition to merce, at date of fatal injuries, held not such remand to the United States Circuit Court, departure from original petition as would preto the effect that both Pope and the company vent amendment from relating back to filing were engaged in interstate commerce when he of original petition. was injured. The motion and petition to re- 2. DEATH Ow394-ACCRUAL OF Rights. mand were filed within two years after Pope died, and the company in its last s. Comp. St. 1916, &$ 8657–8665), cause of ac
Under federal Employers' Liability Act (U. amended answer expressly reserved its every tion in case of death does not accrue until apright under the motion and petition.
pointment of a personal representative of deThe law, which must control here, is clear- ceased, and, where deceased's wife filed petition ly expressed in Hill v. George, 5 Tex. 89, within two years after she was appointed adwhere the statement in Gould on Pleading is ministratrix, action was not barred. approved to the effect that:
3. APPEAL AND ERROR 1114-DECREES TO "If one party expressly avers or confesses
INTERMEDIATE COURT. a material fact omitted on the other side, the Where defendant in error is entitled to have omission is cured. It may thus be made to other assignments considered by Court of Civil appear, from the pleadings on both sides, that | Appeals, which it concluded need not be con
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
sidered under its former disposition of the case, | Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. the cause will be remanded to said court for its 905, 36 L. Ed. 829; T. & N. 0. R. Co. v. Clipfurther action on such assignments of error; penger, 47 Tex. Civ. App. 510, 106 S. W. 157. its judgment being reversed.
And the principal contention of defendant in
error is that the addition of the averments Error to Court of Civil Appeals of Second with respect to the defendant in error and Supreme Judicial District.
the deceased having been engaged in interAction by Mrs. Mary Bird, administratrix. state commerce introduced a new or different against the Fort Worth & Rio Grande Rail- cause of action, which was barred by the way Company. Judgment for plaintiff was lapse of more than two years from the death reversed by the Court of Civil Appeals (196 of the deceased before the filing of the amendS. W. 597) and judgment rendered for de- ed petition. fendant, and plaintiff brings error. Judg
We cannot approve this contention. Our ment of Court of Civil Appeals reversed, reasons are fully given in the opinion of this and cause remanded.
court, filed to-day in the case of Pope v. K.
C., M. & 0. Ry. Co. of Texas, 207 S. W. 514. Odell & Turner, of Cleburne, and McLean,
(2] There is an additional reason, which Scott & McLean, of Ft. Worth, for plaintiff precludes us from sustaining defendant in in error.
error's contention, and that is, in our opinLockett & Rowe, of Ft. Worth, and An- ion, the cause of action, given by the federal drews, Streetman, Burns & Logue, of Hous- Employers' Liability Act, in case of death, ton, for defendant in error.
does not accrue until the appointment of a
personal representative of the deceased, and, GREENWOOD, J. Plaintiff in error re in this case, the administratrix filed her covered a judgment in the trial court, against amended petition within two years from the defendant in error, for damages for the date of her appointment. death of her husband, which was reversed The opinion of the United States Circuit by the Court of Civil Appeals, and judgment Court of Appeals, for the First District, in was rendered for defendant in error, upon the case of Am. R. Co. of Porto Rico v. Corthe ground that plaintiff in error's cause of onas, 230 Fed. 545, 144 C. O. A. 599, L. R. A. action was barred by two years' limitation, 1916E, 1095, contains such a convincing reunder the federal Employers' Liability Act view of the authorities and such a cogent (Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. statement of the grounds for the court's conComp. St. 1916, 88 8657-8665]). 196 S. W. clusion that we are content to merely refer 597.
to that opinion, with the following quotation (1) The death of plaintiff in error's hus- therefrom, viz.: band occurred on October 11, 1911, and she
"It is to be noted that the statute does not filed this suit on March 21, 1913, on behalf of herself and two adult children of the de- two years from the death, but within two years
require that the action shall be brought within ceased.
from the time the cause of action accrued. It is agreed by both parties that defendant It is also to be noted that the action is not in error was engaged in interstate commerce, for the occurrence out of which the death arose, and that the husband of plaintiff in error but for the pecuniary damages to the beneficiwas employed in interstate commerce, when aries, due to the death; so that in no event he met his death; but the original petition could the cause of action arise until after the contained no averment of these facts.
death, or be said to exist so that the statute
could run until after that time. On June 3, 1914, plaintiff in error was ap- therefore assume that the statute, so far as pointed and qualified as administratrix of the this cause of action is concerned, did not beestate of her deceased husband, and there- gin to run until after death had ensued. after, on April 17, 1915, she filed an amended "It is a general rule of law that where a petition in this suit, whereby she as admin-cause of action arises, as in this case, after istratrix, was substituted for the former death, it is considered as accruing, for the plaintiff, and whereby she expressly alleged purpose of the running of the statute, only from that defendant in error was engaged, and the time when there is some one in existence deceased was employed, in interstate com-ministrator can sue, that the statute does not
capable of suing, and, if no one but the admerce, at the date he received the injuries begin to run until administration is granted. causing his death, as the proximate result This principle was announced at an early day. of certain acts of negligence on the part of The leading English case on the subject is Murdefendant in error and on the part of fel- ray, Administrator, v. East India Co., 5 Barn. low servants of the deceased.
& Ald. 204 [24 Revised Rep. 325), which has There was no such departure between the been very generally followed in this country. allegations of the original petition and of the heretofore pointed out as to when a right of ac
** In view of the well-recognized rule amended petition, with respect to the negli- tion accrues—which Congress must have had in gence relied on for a recovery, as would mind when enacting the present law—and in prevent the amendment from relating back to view of the fact that Lord Campbell's Act, upon the filing of the original petition. T. & P. / which the Employers' Liability Act was model
ed, expressly provided that the limitation should Howard Venable was convicted of rape, run from the death of the injured party, and and he appeals. Reversed, and cause re that, in the enactment of the present law, Con- manded, gress declined to adopt such a limitation, and fixed the period from the time the action ac- Defendant's bill of exceptions No. 1, herecrued, we are of the opinion that the proper inafter by the court directed to be included construction of the statute is that the right of in the report of this case, is as follows: action did not accrue, so that the limitation attached, until the administrator was appointed.” Be it remembered that on the trial of the
above entitled and numbered cause, and after  It follows that the Court of Civil Ap- the selection and impaneling of the jury, the peals erred in rendering judgment for de- reading of the indictment, and the entering of fendant in error, and its judgment is revens the defenuant's pleas of not guilty, and after ed; but, since defendant in error is entitled the witness Ola Fincher, the prosecutrix herein, to have other assignments of error consider. stand, and after she had been examined as to
had been by the state placed upon the witness ed by the Court of Civil Appeals, which it an automobile ride, she, the defendant, one concluded need not be considered, under its Irene Tucker, and one Von Rosenberg had taken former disposition of the case, it is therefore on the night of the 7th and morning of the 8th ordered that this cause be remanded to the day of July, 1917, and prior to the time she Court of Civil Appeals for its further action had been asked whether or not the defendant on the assignments of error not heretofore had ever had sexual intercourse with her on said passed upon. Manning v, Ry, Co., 107 Tex. trip, and prior to the time she had been given
opportunity to answer whether or not the de 563, 181 S. W. 687.
fendant had ever had sexual intercourse with her on said trip or on any other occasion, but after she had detailed said trip and had told certain places where the said automobile party had gone, the following proceedings were had,
and parts of the proceedings had are set out in VENABLE v. STATE. (No. 4758.) verbatim form herein, because the court and
counsel deem it necessary to set out the ques(Court of Criminal Appeals of Texas. Dec. 11,
tions in order to better elucidate the proceed1918.)
The district attorney asked the witness wheth1. CRIMINAL LAW 706 - MISCONDUCT OF
er she remembered telling the grand jury of PROSECUTING ATTORNEY EXAMINATION OF
Donley county something, and she answered in WITNESSES.
the affirmative, whereupon the question was Where the district attorney and prosecuting the truth, whereupon counsel for the defendant
asked the prosecutrix whether or not that was officer threatened prosecutrix, a girl under 15 objected to the question in the following lanyears of age, with a prosecution for perjury uniess she repeated her testimony as given before guage:: "Now, your honor, we'object to that;
we believe it is improper, and, if it is for the court of inquiry and grand jury which she said
purpose of impeachment, it is certainly impropwas false and induced by coercion, and she was thus induced to testify, a conviction based there er, and, whatever the purpose is, it is irrelevant,
immaterial, and prejudicial. . We don't underon must be reversed.
stand—I don't know what the purpose of the 2. CRIMINAL LAW Cw655(1)-MISCONDUCT OF testimony is for, unless it is for impeachment JUDGE.
purposes, and certainly is no predicate here Where the trial judge mainly in the absence that would justify an impeachment of his own of the jury reminded prosecutrix in a rape case, witness." Whereupon the court instructed the a girl under 15 years of age, that he had power sheriff to retire the jury, and the jury left the to inflict the death penalty and had just sent box in charge of the sheriff. “You may read a woman to the penitentiary, and committed the statement to the witness; now pay attenprosecutrix to custody overnight, and subse- tion to it.” And the district attorney immediquently threatened to send her to jail unless she ately began reading to the prosecutrix a staterepeated former testimony which she said was
ment purporting to have been made by her in false and induced by coercion and which she a court of inquiry as follows: finally repeated, judgment of conviction must
"The State of Texas, County of Potter. Be be reversed.
it remembered that on this the 9th day of July,
1917, an examining court of inquiry was duly 3. CRIMINAL LAW C553 - CREDIBILITY
organized, with C. G. Landis, justice of the THREATS AND COERCION.
peace, precinct No. 1, Potter county, Texas, Where the examination of a prosecuting wit- presiding, and W. M. Burwell, sheriff, being ness shows that her testimony on which a con- present, and the proceedings were conducied by viction for rape is based was induced by threats the state through her district attorney, E. T. and coercion, ber testimony is not sufficiently Miller, whereupon the following testimony was creditable to sustain a conviction.
adduced, reduced to writing, and subscribed and Prendergast, J., dissenting.
sworn to by the following named witriesses:
"Miss Ola Fincher having been duly sworn ary, A. D. 1917. I live in Amarillo, Potter Jacinto, and they got out to see how much county, Texas, at No. 1607 Buchanan street. gasoline we bad. They found that it had run My father's name is W. F. Fincher. My moth- nearly empty; then we came up to the oil er's name is Deamon Fincher. I was in Amaril- station on Taylor street, Pierce Fordyce filling lo on Saturday night, July 7, 1917. I left home station, and we got some gas and filled up the that evening on the 8:15 car, and left town at tank. We then went and took Mr. Wilson 8:30 p. m.' At which point in the proceedings around to the Texan, the hotel where he stays. had in this cause the defendant objected to the That left Mabel, Buzz, Von Rosenberg, Irene, retirement of the jury in the following lan- and myself in the car. We then rode around guage:
by the court testified as follows, to wit: 'My Appeal from District Court, Armstrong name is Ola Fincher, I am thirteen years of County; Hugh L. Umphres, Judge.
age. I was thirteen on the 3d day of JanuOm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
up Polk street, and then we went on home. Mr. Mood (counsel for defendant): Mr. Miller, Mabel and I both started to get out. Mabel just a moment. Your honor, we will want a got out, and Irene said, You are not going bill of exceptions to your honor's retiring the to leave me with both of the boys by myself?' jury.
Mabel says, 'I have to go to work in the mornThe Court: Why, sure, that is all right; you ing, and I know that I am not going to stay can have your bill.
with you;' and I said, 'I am not going to stay Whereupon the district attorney continued with you;' and when I started to get out she the reading of the same statement he had start. pulled me back, and Irene said, 'I wouldn't go ed to read to the witness, as follows:
home for $100.' Sis said, 'I will tell mother "After getting off the car I came around to that you stayed all night with Slim.' Slim work with my sister, Mabel Fincher, at Nick's is Effie Rose. I know that her first name is place on Taylor street, and then I went to the Effie. I think her last name is Rose. They show. I went to the Deandi Theater. We drove up, and we started on, Buzz, Von Rosenstayed until after the vaudeville performance, berg, Irene, and myself. We drove out by Glenand then Irene Tucker and Mr. Gray drove wood park, we went on past it, and then turned up in front of the Deandi and asked us if we east down that public road. The public road did not want to ride around. Nobody went is a quarter of a mile south of the park. We with me to the show. I was by myself when went east a long way; I don't know how far; I came out. After getting into the car we it was about three miles east down the road. drove around up town with Irene Tucker and They stopped the car down there east someMr. Gray and myself in the car, we drove where, and Buzz was asleep, with his head around until time for sister to get off from in my lap, and -his feet was in the other part work. It was 11 o'clock p. m. when we got my of the car; we were on the back seat. Irene sister Mabel. I was still with Irene and Mr. and Von Rosenberg were on the front seat. Gray in the car. It was a Ford car, and we | It was then that Von Rosenberg had interthree were all that were in the car at that course with Irene there on the front seat of time. My sister Mabel then got into the car.
the car. Irene was lying down across the The sailor boy and Mabel got into the car, and front seat of the car, on her back, and Von we all went around to the Deandi and got Billie Rosenberg was lying on top of her, with his Wilson. He got into the car with us at the face toward her face. I went to sleep, and Deandi Theater. After that we just drove when I woke up he was going up and down on around in the business part of town. We did her. That was before we went south. When I not ride very long; we drove awhile and then woke up he started to drive the car, and ha went to the Santa Fe depot to get some sand- drove south, and we went in that direction wiches; but we did not get any. While we about a mile. They then stopped the car again. were at the Santa Fé depot Buzz Venable drove They stopped by a haystack; the haystack was up. He, Buzz Venable, called me, Ola Fincher, just inside the fence. I mean Von Rosenberg out to the car. He said to me, 'Ditch the boys; and Irene went to the haystack. Before Yon let's us, your sis, and Irene go riding.' I said, Rosenberg and Irene went to the haystack, 'No, I won't do it.' So we all started up in Buzz Venable had his hand on my person up the Ford again and drove out the Herring loop under my dress. They went to the haystack. and back, and Buzz and Rosenberg followed Buzz kept asking me to have intercourse with us around. He drove up by our car and said him, and I told him, 'No,' I was sick. He kept to me, ‘Meet us at the Golding drug store in on, and pushed me over in the back seat of the ten minutes. That was about 11:30 p. m. I car. After he pushed me over, he pulled up did not say anything to him. We drove back my dress. He took his pants clear down. After out by the Sanitarium, and we turned around, he took his pants down, he had intercourse and the driver, Mr. Gray, got mad at us.
He with me. I know what intercourse is. No had heard Buzz say 'Meet us at the Golding officer of the court has told me what inter, Drug.' He said, 'I will just put you out course' is. I know what intercourse means. there ;' and he put us out at the Golding Drug. Intercourse means when a man takes his penis All of we girls and Mr. Wilson got out at and puts it into the private parts of a woman. the Golding Drug. After we got out at the I know what you mean when you say private Golding Drug, we started to walk home, and female organ. He took his penis and put it Buzz and Von Rosenberg drove up about the in my private female organ.
His male organ Methodist Church, and we got in the car.
Mr. penetrated my female organ.
After he had penWilson, Mabel, Irene, and I all got into the etrated my female organ, bis body went up car with Buzz and Von Rosenberg. After we
and dowi and I could feel his male organ got in the car we drove out east of town; we within my private female organ. I could feel went out by Herring's, nearly to Canyon, Texas. his organ inside of me. He went up and down We got off of the Canyon road, and went away on me a short time; that is, from one to two west. I don't know just where. We rode about minutes, I would think. [He then] got off of two or three hours out that way, and then we I was in the back seat lying down, and came back to town. We were out here in San he was on top of me, between my legs. It
hurt me some when his penis entered my fe- , am not sure that it has been burned. None of male organ. I suffered some pain from the act. my clothing have any blood on them. My I told him that it hurt me. The hurt was the sickness came on me last Friday morning. Mr. greatest at the opening of my female organs. Mood called up this morning, and my mother I told him that it was hurting me, and he got said that she did not want anything done about up; however, bis male member went clear on in this matter. He called her over the telephone. to the inside of my female organ. He then | All that I have told here is the truth. I have got up. We got up and walked out to the barb- told it willingly. I have told what has haped wire fence. We looked over the barb wire pened without being scared, and not in response fence, and Von Rosenberg was on top of Irene; to set questions asked. You have only asked she was lying on her back. I could see her me for the truth. Ola Fincher. naked white limbs. Von Rosenberg was on top, "The cloth that I used was a white, cotton going up and down. It was just a few feet cloth; it did not have much blood on it. If away. Probably about 20 feet away. I saw a it has not been destroyed, I will save it. Ola car coming, and I said, 'Come on quick!' They Fincher. jumped up and got in the car, and we turned "Sworn to and subscribed to before me this around and passed the car at a rate of about the 9th day of July, A. D. 1917. C. G. Landis, 50 miles per hour; then we went to Cliffside. Justice of the Peace, Precinct No. 1, Potter We came to town and stopped at the post office. County, Texas. Sitting as an examining MagisBuzz and Von Rosenberg went up in the St. trate." Charles Apartments. They brought out one quilt. They got in the car, and we came around After the reading of which statement the folto the Merchants' Café on Taylor street and lowing proceedings were had: got some sandwiches. We girls did not get out
"The Court: You may proceed with the interof the car. We then went out past Cliffside
rogation. to the bridge across Amarillo creek ;
Mr. Miller: Q. Miss Ola, do you remember about 5 o'clock in the morning when we got Mr. Burwell on the morning of the 9th; that out there. Just before we got to Cliffside, Buzz
was Monday morning, wasn't it? A. Yes, sir. wanted Irene to get up in the seat with him,
Q. Coming out to your home and bringing and she got back there with Buzz, and I got up you down to Mr. Johnson's office? A. Yes, sir. in front with Von Rosenberg. We rode that Q. Up to that time, Ola, you had not comway until we got about two miles beyond Cliff-municated with any one at all with reference side, and Von Rosenberg put the quilt down on to this particular transaction, had you? A. the ground under a shade tree, and the car was No, sir. about 20 feet away. Von Rosenberg said to me Q. You came down there, and we told you to come out there and sit with him on the that the truth was what we were' after, didn't quilt, and I did so. Buzz and Irene stayed in we? A. Yes, sir. the car, They did not do anything for about
Q. And we told you that Irene had told us fifteen minutes. Irene lay down on her back, what transpired on the night of the 7th, Saturand Buzz got on top of her, and they were going day night, didn't we? A. Yes, sir. up and down; that is, Buzz was going up and
Q. And we asked you if that was true, didn't down on Irene. He was on Irene about five
we, in Mr. Johnson's office? A. I don't remem. minutes. After they finished, Buzz got up and ber that. pulled up his pants and buttoned them up. I
Q. And you said, Yes, it is true,' didn't you? did see them. There was nothing to obstruct A. I don't remember. my view in seeing them have the act of inter
Q. Do you remember relating to us the fact, course. I did not have intercourse with Von leaving out the formal part of that you have Rosenberg. We did not stay out there very already related, that Buzz had his head in your much longer. We drove on out west after lap? A. Yes, sir; I remember that. that. The reason we left was that we saw a
Q. And he was asleep, and that while asleep car coming, and that car passed us. Louis Von Rosenberg had intercourse with Irene on Finklea and Mollie Carder passed by us. I
the front seat, did you? Didn't you do that? did not hide. They passed us in a hurry. We A. Yes, sir; I remember that. stopped at a gate, drove into the field, and then
Q. You remember that. You remember tellwe turned around and came back out of the ing us that you were awake and that you saw field. We did not stop in the field. We came it, and you remember then saying that they on back to town. Buzz gave Irene $2 and told started up the car and turned south out of the us to go to a hotel. I said, 'I do not want to east road-road running east and west-and go to a hotel; I want to go home;' but Irene turned south about a mile, and when you stopsaid that she was not going home, and would ped there Irene and Von Rosenberg got out of not let me leave her, so we went to the Cobb the car and went to the haystack, and while Hotel, 201 North Taylor street, in Amarillo. Von Rosenberg and Irene were getting out of They left us there. We stayed from that morn- the car at that time Howard Venable had bis ing till about 4 o'clock p. m., when I called hand underneath your clothing; that is true, Mabel, and told her to come on over there. I isn't it? A. I don't remember. said that I was going home, and I went on The Court: Now, just a moment; let me home with Mabel. Irene said, 'No, don't go see that, will you? A. I do not remember sayhome and leave me here;' and I said, 'The ing that, best thing for you to do is to go home, too.' The Court: Now, don't-you are under oath But she did not go home. We left her there, now, and let's just be careful about this. You and I have not seen her since. This is the signed that, did you (exhibiting paper to wit9th day of July, 1917, and I am well now, and ness)? A. Yes, sir. I am not sick. I took my cloth off this morn- The Court: Swore to it? A. Yes, sir, ing. I think that the cloth is burned up. I The Court: Well now, let me tell you some