Texas & N. O. R. Co. v. Gross

• Decision Date: 04 May 1910
• Citation: 128 S.W. 1173
• Parties: TEXAS & N. O. R. CO. et al. v. GROSS et al.
• Court: Texas Court of Appeals

128 S.W. 1173

TEXAS & N. O. R. CO. et al. v. GROSS et al.

Court of Civil Appeals of Texas.

May 4, 1910.

Rehearing Denied May 25, 1910.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Felix and Theresa Gross against the Texas & New Orleans Railroad Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Baker, Botts, Parker & Garwood and A. L. Jackson, for appellants. John Lovejoy and J. W. Parker, for appellees.

JAMES, C. J.

The amended original petition on which the case was tried alleged, in substance: That Corley Gross, for whose death damages are sought, left no widow or children. That plaintiffs (appellees) are his parents. That said Corley Gross was in the employ of defendants, the Texas & New Orleans Railroad Company and the Louisiana Western Railroad Company, as locomotive fireman; the former operating a line from Houston, Tex., to Echo, Tex., and the latter a line from Echo to Lafayette, La. That said companies operated their lines jointly, so that deceased was required to operate engines over both lines from Houston to Lafayette, was subject to be discharged by both companies, and said companies were practically partners in the conduct of said business. That the latter's road ran through a country where great numbers of cattle habitually grazed upon its right of way and track, to the great menace of trains. That in the exercise of ordinary care it had fenced its right of way, and deceased and other employés looked to defendants to use ordinary care in keeping such fences in proper repair to avoid collisions with cattle. That on the occasion of the injury, while deceased was prosecuting his duties, on a passenger train running from Houston to Lafayette and near the station of Sulphur in Louisiana, at night, the locomotive came in contact with a cow and was derailed, the result of which was Gross's death. The petition alleged negligence on the part of defendants in several particulars, which will not be stated here, but may be hereafter, if found to be necessary. The original petition in this case was filed March 31, 1906, and the amended petition on May 19, 1908. In both the accident was alleged to have occurred on or about June 1, 1905.

In the original petition the allegations of damage to plaintiffs were twofold: (1) The pecuniary loss sustained by them from the son's death; and (2) the damages which the deceased himself suffered, as surviving to plaintiffs, plaintiffs, in the latter connection, alleging in the original petition that under the statutes of the states of Texas and Louisiana the cause of action which the deceased had against defendants for the injuries sustained by him survived to his father and mother. In the amended petition the latter claim for damages was abandoned, and this allegation appears: "Plaintiffs aver that by the statute law of the state of Louisiana they are given a right of action against defendants and each of them for the damages sustained by them by the death of their said son, caused by their negligence as aforesaid, which statute is similar to the statute of this state giving parents a right of action for the death of their son as a result of negligence."

At this point we may dispose of appellants' second assignment of error, under which the contention is made that demurrers should have been sustained to the amended pleading upon this proposition: "An amendment of pleading, which introduces a new or different cause of action, and makes a new and different demand not made before in the pending suit, does not relate back to the beginning of the action so as to stop the running of the statute of limitations, but is equivalent to a fresh suit upon a new cause of action, and the statute continues to run till the amendment is filed." The demand for what is sued for in the amended petition appears also in the original petition, and therefore it is plain to our minds that the amended petition set up no new cause of action. Anything necessary to be alleged in order to perfect something that is insufficiently pleaded is the office of an amendment. The cause of action was asserted from the first. In the original petition it seems there was the allegation of a statute of Louisiana, but only in reference to the right to recover, by survival, the damages suffered by the deceased. This allegation could properly be amended so as to include in the statute both forms of damage; and, if the original petition had entirely omitted mention of the existence of any such statute, the allegation could be supplied by amendment. Consequently, the first and fourteenth assignments are overruled.

It is not deemed necessary to set forth the pleadings of the defendants, for such can be stated in the course of the opinion where necessary.

Under the first assignment of error, which arises under pleas of jurisdiction and abatement, we have this proposition: "A suit or action instituted in the courts of Texas in a cause of action growing out of injury in the state of Louisiana; and when the laws of said state applicable thereto, either as to the right or remedy or defense, are essentially different from those of this state, the courts of Texas will not entertain jurisdiction of such suit or action." The statute law of Louisiana on the subject was fully developed by the evidence; and its provisions, in so far as they concern the right of parents to recover damage sustained by them from the loss of the son, which is all that is sued for in this action, are not essentially different from what is provided by our statute in such cases. No difficulty presents itself to our courts in administering the remedy substantially as contemplated by the statute giving the right; and no matter of public policy of this state intervenes to deter the courts of this state from exercising jurisdiction. In the companion case to this (Texas & N. O. R. R. et al. v. Fannie Miller et al., 128 S. W. 1165, both having been tried at the same time), the opinion by Associate Justice Neill deals more extensively with this question and gives our reason fully for overruling the assignment.

Under the third assignment of error the third proposition is not well taken. It is true the proof of the Louisiana law developed that the statute of that state allowed compensation for loss of society and for mental anguish arising from the son's death, which are elements not allowed by our statute. Because our statute did not go as far as the Louisiana statute, and the latter includes more elements of damage than ours, affords no reason why the right of recovery attaching under the foreign statute should not, or cannot, be administered fully in this state. The other point embraced by this assignment is that the testimony developed the fact that an act of 1878 of ...