Missouri Pac. Ry. Co. v. Smith

• Decision Date: 19 May 1891
• Court: Texas Supreme Court
• Parties: MISSOURI PAC. RY. CO. v. SMITH.

16 S.W. 803

MISSOURI PAC. RY. CO. v. SMITH.

Supreme Court of Texas.

May 19, 1891.

Commissioners' decision. Appeal from district court, Bexar county; G. H. NOONAN, Judge.

Carr & Lewis, for appellant. Tarleton & Kellar, for appellee.

HOBBY, J.

Suit was brought by the appellee, Dan. P. Smith, October 17, 1887, in a justice court of Bexar county, against the appellant on its liability as a common carrier for $100 damages, alleged to have been caused by injuries to three mares and one horse, arising from the negligence and carelessness of appellant's servants while said stock was being transported over appellant's line of railway from San Antonio, Tex., to Lincoln, Neb., in May, 1887. The trial in the justice court resulted in a judgment for the appellee, Smith, for $75 which was appealed from by the company to the district court. On the 24th day of April, 1888, the cause was continued in that court by the appellant. At the next term it was continued by operation of law, not having been reached. In October, 1888, it was continued by consent. At the December term, 1888, the company, for the first time, filed a plea in abatement, alleging that one T. B. Johnson was a full partner and joint owner of one-half interest in the horses at the time of the alleged injury and the filing of the suit, and is a necessary party. That this fact was not known to defendant until after the appeal from the justice's court of this cause. The appellant filed also a plea setting up a special contract. In response to the plea of non-joinder, the plaintiff objected on the ground that no such plea had been filed in the justice's court. No action was taken with reference to this, and he obtained leave to make the said Johnson a party. The plaintiff objected to this, because he was not made a party in the justice court, and parties plaintiff could not be made in the district court. The objections were overruled. This cause was tried by the court without a jury. The court found that the "horses were shipped by plaintiff, Dan. P. Smith. over defendant's road, in May, 1887, and were damaged through the carelessness and negligence and cruel treatment of the latter's employes," and rendered judgment for $75 in favor of said Smith. The court further found that Johnson furnished a part of the money to purchase the stock, and was to share in the profits, and was not known in the transaction, but that Smith had exclusive control, etc., and made all contracts in relation thereto.

The first assignment is that "the court erred in permitting plaintiff, over objections of defendant, to make Tom B. Johnson a party plaintiff in the district court, because the suit was an appealed case from the justice's court, and in the justice's court Dan. P. Smith was the sole plaintiff, and new parties could not be made or the cause of action changed after the appeal to the district court." And another objection, as recited in plaintiff's bill of exceptions, was that "the case had to be tried on the issues as made below, and new parties plaintiff could not be added, nor the nature of the cause of action changed, by amendment." If this be correct, as applied to the amendment, it would be equally so in its application to the plaintiff's plea. It would be an unreasonable construction that would allow his plea a new one, not presented in the justice's court, presenting a new issue in the district court, and hold that of the defendant's, which is made necessary by it, to be an amendment, changing the cause of action. There is no change in the original account sued on; it is the same as declared on in the justice's court. The appellant has no just reason to complain that Johnson was made a party when his own plea required him to be. The appellant had possession of the contract signed by Dan. P. Smith & Co. In the justice's court. An amendment correcting a misdescription, which anticipates and obviates an objection on the ground of variance between the pleadings and the proof, would not be introducing a new cause of action, because, if such objection was valid, it would be so for the reason that the original account or contract, as correctly described by the amendment, authorized the admission of the evidence. Thompson v. Swearengin, 48 Tex. 559, 560. If the original account or instrument declared on authorized the proof, and it was not...