Bird v. Ft. Worth & R. G. Ry. Co.
| Decision Date | 18 December 1918 |
| Docket Number | (No. 3137.) |
| Citation | 207 S.W. 518 |
| Parties | BIRD v. FT. WORTH & R. G. RY. CO. |
| Court | Texas Supreme Court |
Action by Mrs. Mary Bird, administratrix, against the Fort Worth & Rio Grande Railway Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (196 S. W. 597) and judgment rendered for defendant, and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and cause remanded.
Odell & Turner, of Cleburne, and McLean, Scott & McLean, of Ft. Worth, for plaintiff in error.
Lockett & Rowe, of Ft. Worth, and Andrews, Streetman, Burns & Logue, of Houston, for defendant in error.
Plaintiff in error recovered a judgment in the trial court, against defendant in error, for damages for the death of her husband, which was reversed by the Court of Civil Appeals, and judgment was rendered for defendant in error, upon the ground that plaintiff in error's cause of action was barred by two years' limitation, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). 196 S. W. 597.
The death of plaintiff in error's husband occurred on October 11, 1911, and she filed this suit on March 21, 1913, on behalf of herself and two adult children of the deceased.
It is agreed by both parties that defendant in error was engaged in interstate commerce, and that the husband of plaintiff in error was employed in interstate commerce, when he met his death; but the original petition contained no averment of these facts.
On June 3, 1914, plaintiff in error was appointed and qualified as administratrix of the estate of her deceased husband, and thereafter, on April 17, 1915, she filed an amended petition in this suit, whereby she as administratrix, was substituted for the former plaintiff, and whereby she expressly alleged that defendant in error was engaged, and deceased was employed, in interstate commerce, at the date he received the injuries causing his death, as the proximate result of certain acts of negligence on the part of defendant in error and on the part of fellow servants of the deceased.
There was no such departure between the allegations of the original petition and of the amended petition, with respect to the negligence relied on for a recovery, as would prevent the amendment from relating back to the filing of the original petition. T. & P. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; T. & N. O. R. Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 157. And the principal contention of defendant in error is that the addition of the averments with respect to the defendant in error and the deceased having been engaged in interstate commerce introduced a new or different cause of action, which was barred by the lapse of more than two years from the death of the deceased before the filing of the amended petition.
We cannot approve this contention. Our reasons are fully given in the opinion of this court, filed to-day in the case of Pope v. K. C., M. & O. Ry. Co. of Texas, 207 S. W. 514.
There is an additional reason, which precludes us from sustaining defendant in error's contention, and...
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... ... Philadelphia & R. Ry. (C. C. A.) 1 F.(2d) 85, in Kierejewski v, Great Lakes Dredge & Dock Co. (D. C.) 280 F. 125, and in Bird v. Ft. Worth & Rio Grande ... Railway, 207 S. W. 518, 109 Tex. 323. Other cases have laid down a similar rule with respect to state laws giving a ... ...
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Glasgow v. De Lapp, 11017.
...& Rollins, Tex.Civ.App.], 53 S.W.2d [635], 636. "Argument. In the first case cited above, the Supreme Court of Texas held [109 Tex. 311, 207 S.W. 518]: "`If one party expressly avers or confesses a material fact omitted on the other side, the omission is cured. It may thus be made to appear......
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...172 S.W. 729; Missouri, K. & T. Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134; Bird v. Ft. W. & R. G. Ry. Co., 109 Tex. 323, 207 S.W. 518. In her first petition, while Mrs. Gant sued as administratrix, she fully described the relationship of the deceased......
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