Baker v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 26 January 1916
• Docket Number: (No. 5569.)
• Citation: 184 S.W. 257
• Parties: BAKER v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

184 S.W. 257

BAKER v. GULF, C. & S. F. RY. CO.

(No. 5569.)

Court of Civil Appeals of Texas. Austin.

January 26, 1916.

Rehearing Denied March 1, 1916.

Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.

Action by L. M. Baker against the Gulf. Colorado & Santa Fé Railway Company. From a judgment dismissing his action, plaintiff appeals. Reversed and remanded.

J. A. Adkins and F. M. Newman, both of Brady, and Wilkinson & Baugh, of Brownwood, for appellant. Sam McCollum, of Brady, Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Smith, of Ft. Worth, for appellee.

JENKINS, J.

J. T. and L. M. Baker brought suit against the appellee to recover damages on account of alleged injuries to their property. The case went to trial after the alleged cause of action would have been barred by the statute of limitation, had the suit not been instituted prior to that time. Upon the trial, L. M. Baker testified that the property alleged to have been injured was formerly the property of himself and J. T. Baker, but that prior to the injury he had purchased the interest of J. T. Baker therein. Thereupon the appellant, upon leave of the court, filed an amended petition, in all respects similar to the original petition, except it was alleged that the property belonged to L. M. Baker, instead of to J. T. and L. M. Baker, as alleged in the original petition. The appellee then excepted to the amended petition as showing upon its face that the cause of action therein alleged was barred by the statute of limitation. This exception was sustained by the court, and, the appellant having declined to further amend, judgment was entered dismissing the case. The appellant, having excepted to such action of the court and perfected his appeal, here presents such action for review.

The specific question here presented is: Where a suit is brought to recover damages for specified injuries to specific property, alleged in the original petition to belong to two parties, and, by amendment, the property is alleged to belong to one of such parties, did the filing of the original petition toll the statute of limitations as to the cause of action set out in the amended petition, the allegations, except as to such ownership, being the same? It is true that the ownership alleged in the original petition would not have been supported by proof of ownership as alleged in the amended petition, but this is not necessarily conclusive as to the point here in issue.

"A variance of this character * * * has frequently been held fatal. * * * But evidently the correction, by amendment, of any misdescription that would be fatal on an objection for variance between the allegata and probata, cannot be held to be a new suit." Thompson v. Swearengin, 48 Tex. 560.

It has been held that a petition bad on general demurrer is sufficient to interrupt the statute of limitations. Kinney v. Lee, 10 Tex. 155; Killebrew v. Stockdale, 51 Tex. 532; Kauffman v. Wooters, 79 Tex. 214, 13 S. W. 549.

That a party plaintiff may, in a proper case, be dropped by amendment, and that limitation would not thereby be rendered available against the remaining plaintiff or plaintiffs, cannot be doubted. Railway Co. v. Watson, 72 Tex. 631, 10 S. W. 731; Rapid Transit Co. v. Campbell, 26 S. W. 884; Snow v. Rudolph, 131 S. W. 249.

The principal purpose of amending a petition is to allege facts other or different from those theretofore alleged, and which, without such amendment, would not have been admissible in evidence. The question is not, have different facts from those in the original petition been alleged in the amendment? but do the facts alleged in the amendment constitute a different cause of action from that originally alleged?

"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." Walker v. Railway Co., 193 Mo. 475, 92 S. W. 90; Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 674, 675. See, also, Sanger v. Newton, 134 Mass. 308; Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461; Tobias v. Harland, 1 Wend. (N. Y.) 93; Miller v. Watson, 6 Wend. (N. Y.) 506.

On the other hand, the right to plead the statute of limitations in bar of an action is secured by statute, and is not to be denied simply because the plaintiff is thereby denied a trial on the merits of his case.

The language of our statutes of limitation is that "every suit shall be instituted," or "shall be commenced," or "shall be brought," within the time therein mentioned. R. S. arts. 5672-5690. Of course, this means that the suit shall be brought by the party having the cause of action. So that a suit by A. will not suspend the statute as to a suit subsequently brought by B. for the same cause of action, there being no privity in such cause of action between A. and B. It is upon this principle that a suit brought by or against an executor, administrator, or guardian will not arrest the statute of limitations as against a suit for or against such party in his individual capacity, for, though the same individual, in their legal aspect they are different persons. A suit against an executor or administrator is a suit against the estate of the deceased, or rather, against his heirs or legatees, and not against such legal representative as a person. This is clearly stated in Henderson v. Kissam, 8 Tex. 54, wherein it is said:

"The object of making [A. C.] Allen, as the representative of the deceased, a party was that the property of the estate, and not his own, might be subjected to the debt. * * * Had the defendant been removed from the office of administrator, and another appointed, the suit would have proceeded against the administrator de bonis non, and not against the defendant. * * * The fact that the person now charged [by amendment] individually is the identical person who had been charged [in the original petition] as the representative of another cannot affect the rights of the defendants, or operate in favor of the plaintiff."

See, also, Morales v. Fisk, 66 Tex. 194, 18 S. W. 495.

There is no difficulty in determining, as an abstract proposition of law, when a cause of action set forth in an amended petition is or is not subject to the plea of limitation. The authorities all agree that if the amendment sets up a new or different cause of action, the statute is not tolled by the filing of the original petition. The difficulty lies in determining what is a new or different cause of action, and in this regard it has been said by high authority that there is hopeless conflict. This question is fully discussed in an able opinion by the Supreme Court of Arizona in the case of Boudreaux v. Gas Co., 13 Ariz. 361, 114 Pac. 547, 33 L. R. A. (N. S.) 196. The proper way to decide any case is to ascertain, if we can, the legal principles involved, and then apply, as best we may, such principles to the case in hand.

In Phœnix Lumber Co. v. Waterworks Co., 94 Tex. 462, 61 S. W. 709, Mr. Justice Brown lays down the following test for determining the identity of causes of action:

"(1) Would a recovery had upon the original bar a recovery under the amended petition; (2) would the same evidence support both of the pleadings; (3) is the measure of damages the same in each case; (4) are the allegations of each subject to the same defenses?"

These tests, or some of them, have been announced in numerous cases. Applying the second of these tests to that case, the learned judge proceeds to show clearly that the same evidence would not support the two petitions, in that under the original petition, which declared upon an express contract, the issues would have been only was the contract made, was it breached, and what, if any, damage resulted to the plaintiff by reason of such breach; whereas —

"in answer to the amended petition, the defendant would be required to meet a great number of circumstances and facts originating at different times and dates, arising out of transactions by different persons in its employ, all of which would be inadmissible in answer to and would constitute no defense to the original petition."

This reasoning applies, to a greater or less extent, to all cases where the original petition declared upon a contract and the amendment declared upon a tort (Booth v. Packing Co., 47 Tex. Civ. App. 336, 105 S. W. 48), or where the original petition declared upon one kind of a contract and the amendment upon another, as where the suit was upon a note, and by amendment was on a verbal promise to pay (Williams v. Randon, 10 Tex. 79-80); or vice versa (Wooldridge v. Hathaway, 45 Tex. 380; McLane v. Belvin, 47 Tex. 493); or where the original petition declared upon one note and the amendment upon another (Haddock v. Crocheron, 32 Tex. 276, 5 Am. Rep. 244); or where the original suit was upon one tort, and the amendment was upon another (Lumber Co. v. Railway Co., 164 S. W. 404).

On the other hand, it has been held that an amendment did not set up a new cause of action against which limitation was not suspended, where the petition alleged that the plaintiffs were partners in a firm composed of three parties, and the amendment alleged that the copartnership was composed of two of said parties (Pridgen v. McLean, 12 Tex. 420; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 363); or where it was originally alleged that a copartnership was composed of two persons, and by amendment it was alleged that the copartnership was composed of an additional party (Thompson v. Swearengin, 48 Tex. 555); or adding a new party plaintiff where the property is claimed jointly by plaintiffs (Laughlin v. Tips, 8 Tex. Civ. App. 649), 28 S. W. 551. And so, where three parties brought suit to recover land, alleging that they owned the same in fee simple, and the amendment alleged that they, together with four other parties, were owners of the land, it was held it was not a new cause of action as to...