source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    SCALING v. COLLINS.
    (No. 8946.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 14, 1918.)
    New Trial <®=^8o — Absence op Party — Discretion.
    Where defendant failed to appear at either the first or second time for which case was set, and, though notified that it was again set for 9:30 a. m. the next morning, failed to start from his home, 20 miles in the country, till that morning, and, because of mud and automobile trou- j hies, arrived after judgment, there was no abuse of discretion in refusing new trial.
    Appeal from Clay County Court; E. W. Coleman, Judge.
    Action by B. B. Collins against Harry Scaling. Defendant was denied a new trial, and appeals.
    Affirmed.
    B. F. Arnold, of Henrietta, for appellant.
    Taylor, Allen & Taylor, of Henrietta, for appellee.
   BUCK, J.

We do not feel justified in holding that in denying appellant, defendant below, a new trial the trial court abused the large discretion as to such matters vested in him by law. The controverting affidavit of plaintiff shows that the cause was originally set for July 30, 1917, on which date neither the defendant nor his counsel was present. The court on his own motion reset the case for 1:30 p. m. August 6th. Attorneys for plaintiff immediately wrote defendant, who lived only 20 miles from Henrietta, the county seat, notifying him of such resetting, and a few days later defendant’s counsel returned to Henrietta, and both the court and plaintiff’s attorney notified him of "the setting. Defendant’s attorney immediately by letter notified his client of the setting. It is shown that the rural mail carrier leaving Henrietta daily delivers defendant’s mail at his ranch. No claim was made by defendant that he did not get the notices, but he failed to appear in court on the afternoon of August 6ih. Whereupon defendant’s counsel prayed for a postponement until his client could reach Henrietta, or at least until he could get into communication with him. Plaintiff’s attorneys protested against the postponement, informing the court of the two notices of the setting which had been sent defendant. The coilrt finally reset the cause for 9:30 a. m. of the next day, and told the defendant’s attorney that the cause would promptly go to trial at that time, whether ■the defendant was present or not, and that if he could get into communication with defendant he had better do so, and inform him of the last setting and of the court’s statement. Defendant’s counsel did,' at about '3 p. m. of the 6th, call up defendant over the phone, who admitted that he had received the prior notices, and told him to come to Henrietta and be ready for trial at 9 o’clock the next morning. It appears that defendant did not start for Henrietta until the morning of the 7th, and did not reach Henrietta until some 40 minutes after judgment had been granted plaintiff; that defendant’s counsel requested that the case be held open until defendant could reach the courthouse, but this the court refused to do. The only excuse for his failure to be present at 9 o'clock, given by defendant in bis motion for new trial, was that tbe roads were muddy, were well-nigh impassable, and that he had some trouble with his car, which caused a delay of some 20 or 30 minutes.

The oral motion for postponement made on August 7th must be considered as at least the second motion for continuance. No reason is shown why defendant did not start for Henrietta on the afternoon of August 6th. If the roads were muddy, and travel thereby and thereon likely to be greatly impeded, it would seem that such a course would have commended itself to defendant, and that he must have known of the uncertainty of travel in an automobile over roads in such condition. But he took the chance of reaching court by starting from home the next morning. He suffered, apparently, no more delays than might be reasonably, expected in reaching Henrietta. Trials and courts cannot wait on the convenience of individual witnesses or litigants as to when or by what means they shall reach the place of trial. The expedition of court business requires that the individual whose presence at a trial is essential to -the establishment of some right or the protection of some interest should so make his plans and adjust his private affairs as to reasonably insure his presence at the time and place of trial. When the litigant himself fails to do this, and disregards the probability of the delays ordinarily -incident to travel by automobile over bad roads, and experiences such delays, and is thereby prevented from reaching the courthouse during the trial of his case, we are not prepared to hold that the trial court abused his discretion in refusing to set aside the judgment and grant him a new trial.

The judgment is affirmed.
      otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    PHELPS v. HAMLETT.
    (No. 89-36.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 23, 1918.)
    Negligence <®=»39 — Liability of Lessee of Premises — Dangerous Devices — Teafs.
    A lessee of an unused open air theater attractive to children, who places a bomb containing explosives therein, so that it may be set off by electric contact on opening the door, is liable for injuries to a child caused by the explosion of the bomb, although the person injured was a trespasser.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Action by Milton Phelps, by next friend, W. H. Phelps, against J. E. Hamlett. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Mahaffey & Fulwiler, of Abilene, for appellant,
    Hickman & Whitten, of Abilene, for appel-lee.
   CONNER, C. J.

Milton Phelps, a minor of about 12 years of age, instituted this suit, by his father as next friend, to recover of the appellee damages in the sum of $20,000.

It was alleged that on or about the 3d day of May, 1917, the defendant, Hamlett, was the lessee of certain property described in the petition as situated in the city of Abilene and used as an airdome or picture show and theater. The petition described the airdome as inclosed with walls only, and with doors or entries thereto, and alleged that the theater had not been used for some time, and that the place was attractive for children, and that many children and other persons frequented the place for pleasure and other purposes, which fact was well known and understood by defendant; that about the time above stated, defendant, Hamlett, with full knowledge of the facts and circumstances, negligently, recklessly, intentionally, and maliciously set, placed, and fixed, and caused to be set, placed, and fixed on and under the floor of the stage of the theater, a bomb or device, made and constructed of iron pipe and loaded and charged with dynamite, powder, nitroglycerin, or some kind of high and dangerous explosive; that said bomb was so placed as to be concealed and attached to an electrical device in such manner as that persons opening the door leading into said theater would, by that act, ignite and set off said charge contained in said bomb and cause same to explode.

It was further alleged that on or about the time stated Milton Phelps, without knowledge that the defendant had placed or caused to be placed said bomb or device, and without knowledge of any danger existing in said place, started to enter said air-dome, and that when he opened the door leading into it said bomb or device was set off and exploded and a large piece of jagged iron was, by the force of explosion blown through the upper portion of his right thigh, causing a serious wound, much pain, etc., as is particularly described in the. petition.

The defendant answered by general and special demurrer, contributory negligence, and general and special denials.

The case came on for -trial before a jury and upon the conclusion of the plaintiff’s evidence the court instructed a verdict for defendant, judgment was so rendered, and plaintiff has appealed therefrom.

The reason for the peremptory instruction as recited in the court’s judgment was that under the plaintiff’s pleading and evidence he had “wholly failed to establish a case against the defendant.” We find that we must differ very decidedly from the conclusion of the trial court. The plaintiff’s evidence may be stated in a general way to support the allegations of his petition. It is undisputed that appellee was the lessee of the property described in plaintiff’s petition, and that he authorized, as he himself testified, one of his employés to prepare and place the bomb for the purpose, as other evidence tends tó show, of preventing unauthorized persons from entering the airdome inclosure. Under the evidence there can be no question but that the bomb was so charged and placed as to become very dangerous, and that when exploded it did, in fact, inflict a very grievous and permanent wound upon the minor plaintiff.

From the evidence it seems that numerous persons, including children, had been in, the habit of trespassing upon the airdome premises, and the fact of the manufacture and placing of the bomb in question is evidence that defendant had in contemplation the entry of persons at the very door that plaintiff .attempted to enter, and that upon such entry the bomb would explode. It is no defense to ■such action and purpose to say that the' minor was a trespasser. That may be conceded. While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers. See 1 Thompson on Negligence, § 964; 29 Cyc. 444; Grant v. Hass, 31 Tex. Civ. App. 688, 75 S. W. 342; Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18; Herrick v. Wixom, 121 Mich. 384, 80 N. W. 117, 81 N. W. 333.

We conclude that the judgment, must be reversed and the cause remanded, because of error in the court’s charge.
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text:
    PENA et al. v. BAKER.
    (No. 8909.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 2, 1918.
    Rehearing Denied Dec. 21, 1918.)
    1. Injunction <®=>118(1) — Petition — Restraint OF SUITS.
    A petition to enjoin the separate prosecution of four separate suits, before a justice of the peace, on labor claims assigned, brought in the name of the assignors, is insufficient, where it does not show that the assignees of the claim sued on were parties in the justice court.
    2. Action <S=»57(1) — Consolidation — Discretion of Court.
    Whether separate suits for labor, which have been assigned, shall be consolidated or tried separately, is within the court’s discretion under Rev. St. 1911, art. 2182.
    3. Action <3=>57(2) — Consolidation of Causes — Statute.
    Suits by separate plaintiffs, suing for separate demands, each case being dependent on issues entirely disconnected and distinct, are not within Rev. St. 1911, art. 2182, relating to consolidation of causes.
    4. Injunction @=>26(6) — Restraining Law Action — Defenses Available.
    If a plaintiff, sued before a justice of the peace on a labor claim, has lost his right to maintain suit by assigning his right of action, such defense is available before the justice.
    5. Justices of the Peace @=>124(3) — Judgment — Parties.
    A justice of the peace cannot render a judgment binding on the assignees of labor claims sued for in the name of the assignors, unless the assignees are made parties.
    Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
    Suit by James A. Baker, receiver of the International & Great Northern Railway Company, against T. Pena and others for an injunction. From a decree for plaintiff, defendants appeal.
    Reversed, writ vacated, and application therefor dismissed.
    Graves & Houtchens, of Ft. Worth, for appellants.
    John M. King, of Houston, and Thompson, Barwise & Wharton, Alfred McKnight, and Charles I. Francis, all of Ft. Worth, for ap-pellee.
   CONNER, C. J.

Briefly, this proceeding was instituted by appellee by an application to the district court for an injunction to restrain the separate prosecution of four separate suits that had been filed in a justice court of Tarrant county, Tex. The suits in the justice court were by T. Pena for the sum of $3.05, and by T. Reyes for the sum of $4.30, and by P. Ybarra for the sum of $4.10. All the suits mentioned were for,wages for labor separately done on the railroad of which appellee was receiver. In appel-lee’s petition for an injunction, it was admitted that the receiver became severally indebted to the laboring- plaintiffs named, but it is alleged that before payment the said plaintiffs had fully and legally assigned said wages to the firm of Graves & Houtchens, lawyers; that said Graves & Houtchens had wrongfully instituted the sáid several suits in tlie several names of the laborers mentioned for the purpose of embarrasing and vexing the receiver and of causing him useless and -unnecessary costs, particularly in the way of attorney’s fees allowed laborers under Revised Statutes, art. 2178, which is not available to assignees of wage claims; tliat payment of the several sums specified had been tendered to said firm of lawyers, who refused the tender.

It was also alleged that a motion had been made in the justice court to consolidate said causes, but that said motion had been overruled by the justice of the peace.

The prayer was that the several plaintiffs in the justice court and the justice of the peace and the said firm of lawyers be restrained from a further hearing of said causes so long “as they are prosecuted as separate and distinct causes.”

We are of the opinion that the petition wholly fails to show any right to the writ of injunction issued by the district court. The petition for injunction, upon which the decree rests, does not show that the alleged assignees of the claims sued upon by the laborers were made parties in the justice court. It is not. alleged that the receiver sought to do this, nor does the petition distinctly show the contents of the motion made in the justice court to consolidate the suits, so that we can determine whether the justice of the peace abused his discretion in refusing to consolidate the causes in his court. The question of whether cases of the kind shall be consolidated is, at best, one that lies within the discretion of the court, not to be controlled by a writ of injunction. See [Revised Statutes, art. 2182; Bolden et al. v. Hughes, 48 Tex. Civ. App. 496, 107 S. W. 91; Vernor v. D. Sullivan & Co., 126 S. W. 641; McFaddin v. State, 139 S. W. 991; St. L. S. W. Ry. Co. v. Woldert Grocery Co., 162 S. W. 1176; C., R. I. & G. Ry. Co. et al. v. Liberal Elevator Co. et al., 182 S. W. 355; H. & T. C. Ry. Co. v. Young et al., 137 S. W. 380; Pye et al. v. Wyatt, 151 S. W. 1086.

Indeed, it seems plain, as was in effect admitted in behalf of appellee upon submission of this case, that the suits as instituted in the justice court could not have been properly consolidated by the justice of the peace. There were separate plaintiffs, suing for separate demands, and each ease dependent for determination upon issues entirely disconnected and distinct. Such cases are not within the statute above cited, relating to consolidation of causes, as mil be seen by reference thereto.

We fail to see, in the absence of the alleged assignees, as parties, how the justice of the peace could do otherwise than to hear and determine the issues of the assignment, as and when the several cases were tried in his court. If in truth T. Pena or T. Reyes, or P. Gonzales, or P. Ybarra had lost all right of recovery by reason of an assignment, and it was so proven, the effect would be to defeat the claim of the plaintiff against whom such proof was made, and such defense was clearly available in the justice court. In no other way that we can see could the justice of the peace proceed in the absence of the appearance of the alleged assignees as parties, for it is clear that unless they were parties no judgment could be rendered by the justice of the peace that would bind them.

We conclude that the judgment of the district court should be reversed, the writ of injunction heretofore issued vacated, and the application therefor dismissed.
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author: JENKINS, J.

text:
    WILIE v. HAYS et al.
    (No. 5933.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1918.)
    1. Mortgages <§=>353 — 'Trust Deeds — Notice oe Sale.
    A sale of land without notice by a trustee under trust deed is void, and the deed can be set aside as a cloud upon the title of the owner.
    2. Appeal and Error <©=>216(1) — Matters Reviewable — Special Instructions.
    Assignment of error complaining that court did not give special instructions cannot be considered, where court was not requested to give them.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by C. L. Wilie against W. B. Hays and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    G. W. Bareus, of Waco, for appellant.
    S. E. Stratton, of Waco, for appellees.
   JENKINS, J.

This suit was brought by appellant in the form of trespass to try title, and in the alternative to set aside an alleged deed to said land, executed by a substitute trustee to appellees, and also in the alternative to redeem said land from the mortgage lien.

Appellant proved title in himself to the land in controversy, in that he showed plaintiff and defendants were claiming under . a common source. Appellees offered no evidence, but on cross-examination of appellant proved by him that he had executed a deed of trust on the land, and that the debt for which the same was security had never been paid.

The court instructed a verdict for appel-lees. In this we think there was error. The appellant had the right to show, if he could, that if any deed had been executed by the trustee it was void, for the reason that no notice of such sale had been given; appellant so alleged, and there was some testimony to this effect. If such was a fact, appellant was entitled to a judgment canceling the deed of trust as a cloud upon his title. Appellees might, if they had chosen to do so, have proven that the mortgage debt had never been paid, and asked for a foreclosure of same in this proceeding. Appellees did not ask for such judgment, and the judgment, if allowed to remain, would bar appellant from recovery of the land.

The case was not well tried in the court below, and will probably be more fully developed on another trial.

Appellant, by several assignments of error, complains that the court did not give certain special instructions. In this the court did not err, as it was not requested to give such instructions.

Appellant’s bill of exception to the peremptory charge of the court is sufficient to raise the issues referred to in this opinion.

The judgment of the trial court is reversed, and this cause is remanded for. a new trial.

Reversed and remanded.
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author: RAINEY, O. J.

text:
    GUYER v. CHAPMAN et al.
    (No. 8021.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1918.
    On Rehearing, Jan. 4, 1919.)
    1. Work and Labor <§=>£, 29(1) — Services— Damage.
    Recovery on a quantum meruit does not necessarily depend upon a specific value, and if it be only shown that services were rendered, plaintiff is at least entitled to nominal damages.
    On Rehearing.
    2. Trial <g=>145 — Abandonment of Issues— Evidence.
    Where plaintiff sued on contract, or in the alternative on a quantum meruit, he was entitled to the submission of a quantum meruit, although in his testimony he insisted that he only performed the services by virtue of the alleged contract.
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge.
    Suit by R. W. Guyer against P. A. Chapman and others. Judgment for defendants,
    and plaintiff appeals.
    Reversed and remanded.
    M. W. Muse and J. M. Muse, both of McKinney, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.
    Tom Whipple, of Waxahachie, and Harry Rogers, of Tulsa, Okl., for appellees.
   RAINEY, O. J.

This suit was instituted in the district court of Ellis county, Tex., by R. W. Guyer against P. A. Chapman, O. I-I. Chapman, R. M. McEarlin, and J. A. Chapman, alleging that he and they had formed a partnership, or an association in the nature of a partnership, for the discovery and development of lands bearing oils and other minerals of value, by virtue of which plaintiff was to devote his time and' attention as a practical geologist and one experienced in the location of oil and mineral bearing lands; and the defendants were to finance the projects. The plaintiff was to receive one-fifth of the net revenues-or profits from the venture, and the defendants were to receive four-fifths. Plaintiff pleaded in the alternative that, if he was mistaken as to there being an association or partnership, then he had rendered services of value to the defendants, which were accepted by them, and that he was entitled to payment from them for such services on a quantum meruit. The petition showed that O. I-I. Chapman and P. A. Chapman were residents of Ellis county, Tex., and that R. M. Mc-Earlin and J. A. Chapman were residents of Tulsa county, Okl. It showed that P. A. Chapman and O. H. Chapman and R. M. McEarlin had answered, but that J. A. Chapman had not answered. It prayed for a recovery against defendants on the theory of a partnership, and in the alternative for judgment against each and, all of them for valuable services rendered them and accepted by them. Defendants P. A. Chapman and O. H. Chapman and R. M. McEarlin answered by exceptions, general denial, and denial under oath of partnership. In view of the allegations as to partnership rights and liabilities, J. A. Chapman, though a nonresident of the state, and not answering, was retained hs a party defendant in the petition on which the ease was tried. Frank v. Tatum, 87 Tex. 207, 25 S. W. 409; Burnett & Ross v. Sullivan et al., 58 Tex. 535; McManus v. Cash & Luckel, 101 Tex. 261, 269, 108 S. W. 800; Glasscock v. Price, 92 Tex. 271, 47 S. W. 965. The case was submitted to the jury on special issues, confined to the question of whether there was a partnership formed between plaintiff and defendants, requested issues based on the theory of no partnership, and the right of plaintiff to recover for valuable services rendered being refused. The first issue submitted was whether plaintiff and defendants entered into a partnership, and the jury were instructed, if they answered this in the negative, they need inquire no further. That issue was so answered. The court thereafter entered judgment that plaintiff take nothing, and that defendants recover all costs.

The trial court instructed the jury as follows;

“Plaintiff alleges in his petition substantially the following: That about the 17th day of January, 1911, that plaintiff, R. W. Guyer, and defendants, P. A. Chapman, O. H. Chapman, R. -M. McFarlin, and J. A. Chapman, at Llano, Tex., entered into an agreement by and between themselves, forming an association in the nature of a partnership, the purpose of which was to search for, discover, locate, purchase, develop, and otherwise handle all kinds of minerals, including gas and oil; that under said agreement the said Guyer should furnish his knowledge and information as a geologist and as one having acquaintance with the general character of geological formations bearing or likely to bear or produce gas or oil, and that he should furnish his knowledge, information, and services in pointing out general geological formations and the trends of the same, and general locations where there was a probability of the production of the same; that he was, whenever requested to do so, to give his judgment or opinion as to any places where it was expected or anticipated that any of the other parties to said contract might or should secure leases or make purchases for the purpose of discovering and developing gas or oil; that he was to do this not only of his own motion, but at the re-quest or under the direction of said other persons to said contract, or any of them; he was to make researches where they should indicate; that the four defendants were to furnish the capital for the research work, location, discovery, development, and handling of all properties and rights acquired or to be acquired, and that it was agreed and understood between the plaintiff and the defendants that in whatever way said agreement or contract might be effectual or carried out that the plaintiff was to have one-fifth of all the profits and net amounts realized from the undertaking.”

There were numerous other facts setting forth the performance of services by plaintiff for the defendants and the dealing between them, and plaintiff pleaded in the alternative as follows:

“Plaintiff says that, if mistaken in his construction of said agreement between him and said other four persons constituting a partnership or association in the nature of a partnership, or if he is mistaken as to there being any specific and definite agreement under which he performed the services as aforesaid, yet he further pleads that he performed all of the said services upon the inducement at the instance and request and for the benefit of said four parties, called defendants, and each of them, as above shown; that said services were accepted by said parties, and were of value to them; that they often recognized the value of such services, and told plaintiff he would be fully protected; that in reliance upon such promises he performed each and all of the labors above set forth, and that by reason of his knowledge, his advice, and his work defendants, and each of them, have become enriched, by reason of all of which they have become bound and in law have promised to pay plaintiff the reasonable and just value for his services, knowledge, and labor of which they have so taken advantage. They have refused and still fail and refuse to pay plaintiff one dollar. Plaintiff says, based on the very lowest' estimate of the worth of said services, he is entitled to receive from them the sum of $2,000,000, and that their promises and undertakings toward plaintiff were joint and several, and that each of them has become bound to pay to plaintiff his just damages, all of which they, and each of them, refuse to do.”

At the close of the evidence and argument of counsel special issues were submitted to the jury by the court, the court confining the jury to one issue, that of the parties entering a contract as alleged by plaintiff and ignoring plaintiff’s plea of quantum meruit, and of this appellant assigns error, claiming that it was _ raised by both the pleadings and the evidence.

The jury answered this issue against ap-pellee, and the court refused to propound certain issues as to the right of appellant to recover on a quantum meruit, and this constitutes the controlling issue in this appeal.

A quántum meruit was duly pleaded in the alternative, and the appellant in his testimony detailed many facts showing services performed for appellees, which, if true, would have warranted a judgment for appellant, and said issue should have been submitted to the jury.

Appellees contend that appellant by his evidence showed that he was relying on having made a contract and repudiated having worked on a quantum meruit, and did not rely for a recovery on the worth shown by evidence of the services rendered. But a recovery does not necessarily depend on a specific value, and if it be shown that services were rendered, nominal damages can be recovered.

The rule as to value is stated by the third Court of Civil Appeals as follows:

“It is, however, contended on the part of appellees that, since the plaintiff had brought his suit upon |an implied contract, alleging that his services were reasonably worth $300. the burden of proof was upon him to establish his case as alleged, but that no testimony was offered by him to show what his services were reasonably worth. Therefore, irrespective of whether there was error in the giving and refusing of said charges, the judgment should be affirmed. We do not agree with appellees’ contention in this respect, because, first, the evidence does show that appellant claimed at the time that the service was performed that it was worth at least 10 per cent, of the amount involved, but that he would only charge 5 per cent, therefor. Besides this, even if it were conceded that no proof whatever was made with reference to what the same were worth, still we think that plaintiff would have been entitled to recover at least a nominal amount therefor.” Pierce v. Aiken, 146 S. W. 951.

The judgment is reversed, and cause remanded.

On Rehearing.

Appellees in their motion for rehearing contend that we were in error in stating that they claimed that appellant should not recover because he did not state the value of his services, therefore the issue of quantum meruit should not have been presented to the jury.

It is admitted that the writer of the opinion committed error in tliat respect. But in reconsidering tliis matter this court is of the opinion:

That appellees “did contend, and now so contend, that appellant’s lawyer in their pleadings sought a recovery on quantum meruit, hut that the plaintiff repudiated the quantum meruit theory, and by his testimony abandons it by continually saying that he relied on the contract; that he had never performed any services except under and by virtue of the contract made with appellees at Ulano, Tex.”

The writer did not intend to misquote ap-pellees’ contention, and while he was wrong in his statement, the court thinks error does not affect the result of the decision made; conceding that the testimony was sufficient for the jury to find against Guyer on his claim of a contract and his insistence that he was only claiming by virtue of that contract, still, under his pleadings on which he went to trial, and the evidence adduced on the trial, he was entitled to the submission of a qüantum meruit. If there was no contract entered into, which the jury evidently believed, but if Guyer believed there was a contract, and he did render valuable services for appellees, would the fact that he only claimed by virtue of the contract preclude him absolutely from a recovery on a quantum meruit? We think not. So an issue was raised which could only be settled by the jury. The court did not see proper to submit this issue, and for this reason the motion for rehearing is overruled.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MATADOR LAND & CATTLE CO., Limited, v. CASSIDY-SOUTHWESTERN COMMISSION CO. et al.
    (No. 8022.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 9, 1918.)
    1. Boundaries <S=»37(1) — Evidence—Sufficiency.
    In suit to determine true boundary between adjoining surveys, held, that boundary was as claimed by plaintiff.
    2. Boundaries <S=n3(2) — Conflicts in Surveys.
    In establishing boundaries, those calls will be adopted which are more certain, avoid conflicts in surveys, etc., and harmonize with the evident purpose of the state in making the grant, even though a natural object must be disregarded.
    3. Boundaries eg=»3(7) — Unmarked Lines— Courses and Distances.
    When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with accuracy, the unmarked lines will prevail over course and distance.
    4. Boundaries <S=>3 (5) — 'Unmarked Lines— Courses and Distances.
    Distance being regarded as more unreliable than course, it follows that, the greater the distance, the greater the probability of error, and vice versa.
    5. Boundaries @=53(7) — Disregarding Calls —Adjoining Surveys.
    The fact that in field notes of a survey there is a call for an unidentified corner of a survey ought not to be given controlling effect, if to do so is to entirely disregard calls for adjoining surveys and cause confusion and disagreement.
    Appeal from District Court, Baylor County; J. H. Milam, Judge.
    Action by the Matador Land & Cattle Company, Limited, against the Cassidy-Southwestern Commission Company, and another. From the judgment rendered, plaintiff appeals.
    Reversed and rendered.
    Cowan & Burney, of Ft. Worth, and Dickson, Kenan & Newton, of Seymour, for appellant.
    Carrigan, Montgomery & Britain, of Wichita Falls, and W. D. Wilson, of Spur, for appellees.
   CONNER, C. J.

It is agreed in this case that appellant, plaintiff below, is the owner of survey No. 96, hereinafter described, and that the appellee, Cassidy-Southwestern Commission Company, is the owner of survey No. I, originally patented to T. H. Harkey, situated immediately west of said section 96, and that the only issue involved in this case is as to the true boundary line between said survey No. 96 and said survey No. 1.

The boundary line between the surveys named, as fixed by the judgment of the court below, is 101.2 varas east of where appellant claims that it should be. In the effort to make clear how this result was obtained, we will state that survey No. 96 is one of a series of sections in a block of land surveyed by virtue of certificates issued to the Indianola Railroad Company. The initial survey in this block, which extends some 5 or 6 miles north and south by about the same distance east and west, is survey No. 73. Its calls, omitting those not deemed material, are as follows:

“Beginning at a stake in prairie 7 miles N. and 4 ms. W. from N. E. cor of a L. & L. survey in the name of Wm. Cain at the N. W. cor. No. 178, B. S. & F.; thence W. 1900 vs. stake; thence S. 1900 vs. stake; thence E. 1900 vs. S. W. cor. Sd. No. 178; thence N. 1900 vs. to the place of beginning. .Surveyed on the 11th day of Nov. 1875.”

The survey No. 178 mentioned in these field notes is a section in the northwest corner of a block of surveys in the name of John H. Gibson, situated to the east of the Indianola Railway Company block. The Gibson Mock, so far as is necessary here to describe it, extends 7 miles north and south by 4 miles east and west. Surveys 147, 148, 152, 151, and 178 constitute the northern tier of surveys on the Gibson block; survey No. 178 being in the northwest corner of the Mock. Surrey No. 136 is in the southeast corner of the Gibson Mock as above described, and its calls are as follows:

“Beginning at a N. E. corner of Wm. Cain survey L. & L. stake, whence mesquite 2 in. dia. brs. S. 23, W1. 52 vrs.; thence N. with west B. L. of No. 135, 1900 vrs. to E. Mnd; thence W. 1900 vrs. to stake; thence S. 1900 vrs. to stake; thence E. 1900 vrs. to the place of beginning.”

The Wm. Cain survey, called for in the field notes of No. 136, is a large survey of about 2½ miles square. The northeast corner of the Wm. Cain, as called for in the field notes of No. 136, cannot be identified on the ground. The location of this corner of the Wm. Cain can be determined only by course and distance from the southwest corner of this survey, which is identified as an original corner, and the only one of the Wm. Cain corners that can be found. Nor was there found on the ground any original corners in the Gibson block, except the common corner on the north between surveys 147 and 148, and between surveys 152 and 151. The surveys along the eastern boundary of the Indianola Railway Company block all call for the western tier of sections in the Gibson block. Some of them also called for the northeast corner of the Wm. Cain survey, as in the case of the field notes of survey No. 73 hereinbefore given. The field notes of these surveys call for stakes on the common line between the Indianola Railway Company and Gibson blocks, but the common line between these blocks, as called for in the field notes, is not a marked line, being in the prairie, nor does the evidence disclose that any of the original stakes called for can be found.

Survey No. 96, owned by the appellant in this case, is in the third tier of the Mock from the north and on the western boundary of the Indianola Railway Company's block, and the court arrived at the result shown by the judgment by fixing the west boundary line of survey No. 96 by course and distance from the northeast corner of the Wm. Cain survey, instead of fixing the boundary from the northwest corner of survey 178 in the Gibson block. Appellant insists that the true western boundary of survey No. 96 should be determined from the calls in the Indianola block for the surveys in the Gibson Mode rather than from the northeast corner of the Wm. Cain survey, and, after as careful a consideration of the evidence .as we have been able to give it, we agree -with appellant’s contention in this respect.

It appears from the evidence that the Gibson block was surveyed between the 2d and 4th days of November, 1875, and the Indian-ola block, as shown by the field notes, was surveyed on the 11th day of November, 1875, and both blocks were surveyed by deputy surveyors of the Young land district-. It is evident that the purpose of the surveyors in putting in these two blocks of land was to make the line between them a common one; there was no purpose to create conflict between the blocks, for the instructions from the General Band Office, as shown by the evidence, were to the effect that the In-dianola Railway Company’s block should so join the Gibson block on the west, and the field notes of the surveys in the two blocks returned to the General Land Office show that there was neither a vacancy nor a conflict between the several blocks named, and the maps from the General Land Office, as recognized for many years, so show.

Adverting to what has already been stated, the calls in survey 73, the initial survey in the Indianola block, cannot be identified on the ground; that is to say, the original corner stakes and line of No. 178 cannot be so identified, nor can the northeast corner of the Wm. Cain be so identified, but by going 2 miles course and distance from the northwest corner of survey No. 178 there is to be found an identified corner on the northern line of the Gibson block, to wit, the common corner between surveys 151 and 152. Then 2 miles farther east is another identified corner in the line of the Gibson block, to wit, the common corner between surveys 147 and 148. By following course and distance from these identified corners, the northwest corner of 178, called for in the field notes in survey 73 in the Indianola block, can be fixed on the ground with, as we think, greater certainty than the same point can be located by running course and distance from the southwest corner of the Wm. Cain, not called for in the field notes of survey 73, .north 2½ miles, in order to establish the northeast corner of the Wm. Cain, called for in the field notes of survey 73, and from thence running course and distance 7 miles north and 4 miles west.

One of the rules adopted by the courts in establishing boundaries is that those calls shall be adopted which are more certain, avoid conflicts in surveys, etc., and harmonize with the evident purpose of the state in making the grant, even though other calls less certain, even though a natural object, must be disregarded. J. W. Robinson v. Elias Mosson et al., 26 Tex. 249; Bass v. Mitchell, 22 Tex. 285; Jones v. Burgett, 46 Tex. 284; Linney v. Wood, 66 Tex. 22, 17 S. W. 244. In the leading case of Maddox Bros. & Anderson v. Fenner, 79 Tex. 279, 15 S. W. 237, it is said that:

“When unmarked lines of adjacent surveys are called for, and when from the other calls of such adjacent surveys the position of such unmarked lines can be ascertained with accuracy, and when, in the absence of all evidence as to how the survey was actually made, there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason why the survey line should not be given the dignity of an ‘artificial object’ and prevail over course and distance.”

To the same effect is the case of Hermann v. Thomas, 168 S. W. 1048.

The rule so suggested leads, we think, to the conclusion that we have reached. The unmarked line on the western boundary of the Gibson block, for which all the bordering surveys in the Indianola block call, can be located with reasonable certainty by course and distance from the established corners before referred to on the north line of the Gibson block, and, as we think, the surveyor, in putting in the Indianola block, much more probably located the beginning corner of the Indianola block from these two known comers. These two blocks were surveyed within a few days of each other by deputies of the same land district, and we think it fairly inferable that the deputies, locating the Indianola block so soon after the survey of the Gibson block, most probably then saw upon the ground the stakes called for along the west line of the Gibson block. It seems improbable to us that the survey- or, in.beginning the location of the Indianola block at the northwest corner of survey 178 in the Gibson block, would have surveyed from the southwest corner of Wm. Cain survey, some 9½ miles in a southeasterly direction in order to obtain his starting point. Both calls reasonably identify the beginning point at the northwest corner of survey 178, except that, if the calls from the northeast corner of Wm. Cain be adopted as the controlling call, the distances are exhausted before reaching the beginning point, thus creating a conflict of 101.2 varas, which it was the evident purpose of tjie surveyor not to make, and which, as evidenced by the maps from the land office, was not so intended by the land department of the state. It is said in the cases that, of all the indicia of the locality of the true line as run by the surveyor, course and distance are regarded as the most unreliable; distance being regarded as more unreliable than course, for the reason that there is a' greater probability that a chain carrier may lose count or report distances incorrectly by mistake or design than that there was an error in the com-

pass which gave the course. See Lilly v. Blum, 70 Tex. 704, 6 S. W. 279; Ayres v. Harris, 64 Tex. 296; Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304.

If the greatest liability for error exists in the calls for distance, it must follow that the greater the distance the greater the probability of error, and hence the ratio of certainty must increase as the distance is decreased. This is said to illustrate the conclusion that we have reached that in locating the lines of the surveys in the In-dianola block greater certainty of true results is obtained by beginning at the northwest corner of survey No. 178 as fixed from the nearby established corners in the north line of the Gibson block. And inasmuch as it seems to he conceded that the several surveys in the Indianola block all in regular sequence follow one another and call for each other, and that if survey No. 96 be located by course and distance from the northwest comer of survey 178 in the Gibson block, as we have indicated should be done, that the western boundary of survey 96 is as plaintiff below and appellant here claims that it should be, and not as claimed by appellee, or as fixed by the court in its judgment.

The fact that in the field notes of survey 96 there is a call for the unidentified northeast corner of the Wm. Cain ought not, we think, to be given controlling effect. To do so is to entirely disregard the calls in the same field notes for the two adjoining surveys in the Indianola block and cause confusion and disarrangement in all surveys therein. By disregarding this call, and giving effect to others, as we have indicated, the harmony of the entire system is preserved, and this is a factor worthy of consideration in the process of arriving at the correct result. Particularly is this true in view of the further fact that appellee’s survey is junior in point of time to the surveys in the Indianola block by some 30 years, with one of its calls for the southwest corner of 96, and no evidence is pointed out tending to show that, by fixing the west boundary of 96 as we have indicated, there will be any excess in 96, or any deficiency in appellee’s survey. ■

In view of the conclusions stated, other assignments are thought to be immaterial, and it is accordingly ordered that the judgment below be reversed, and here rendered for appellant in accordance with the conclusions above announced.
      <ScsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    POPE et al. v. KANSAS CITY, M. & O. RY. CO. OF TEXAS.
    (No. 2538.)
    (Supreme Court of Texas.
    Dec. 18, 1918.)
    1. Courts <&wkey;97(5) — Decision of Federal Court.
    Decision of United States Supreme Court involving application and construction of a federal statute held decisive, in suit in state court, that switching between stations is as much a part of interstate transportation as movement across state line, and that right of recovery, if any, for death of employe, killed while switching, is in his personal representative.
    2. Master and Servant <&wkey;288(30) — Engineer Engaged in Interstate Commerce-Negligence of Conductor — Assumption oe Risk.
    Question whether conductor’s negligence was the proximate cause of death of locomotive engineer being under the evidence for the jury, it cannot be held as a conclusion of law that engineer assumed the risk.
    3. Limitation of Actions <&wkey;127(6)— Amendment — Relation Back.
    In action by widow for herself and children to recover for negligent death of her husband, amendment in behalf of a personal representative of deceased, alleging that deceased met his death while engaged in interstate commerce, would not introduce a new or different cause of action barred by limitations, since amend|ment would relate back to original action, which was not barred.
    4. Pleading &wkey;>403(2) — Omissions in Petition — Cure by Pleading of Adverse Party.
    Defect in petition, in action by wife for herself and children to recover for negligent death of her husband, in failing to allege that husband was engaged in interstate commerce, was cured by affirmative allegations in defendant railway company’s motion to dismiss petition to the effect that both husband and company were engaged in interstate commerce when he was injured.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Ethel L. Pope and others against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs was reversed and remanded, with directions on appeal to Court of Civil Appeals (152 S. W. 185; 153 S. W. 163), and plaintiffs bring error.
    Judgments of district court and of Court of Civil Appeals reversed, and cause remanded to district court for further proceedings.
    Hardwicke <& Hardwicbe, of Abilene, Woodruff & Woodruff, of Sweetwater, and Theodore Mack, of Ft. Worth, for plaintiffs in error.
    H. S. Garrett, of San Angelo, H. G. McConnell, of Haskell, and Blanks, Collins & Jackson, of San Angelo, for defendant in error.
   GREENWOOD, J.

This was an action by the widow and three children of Thos. A. Pope to recover of the Kansas City, Mexico & Orient Railway Company of Texas damages for the death of Thos. A. Pope while engaged in the railway company’s service as a locomotive engineer; the death being alleged to have resulted from the negligence of a conductor in the employ of the railway company, in giving a certain signal.

The amended original 'petition, on which the case was tried, did not allege whether the railway company was engaged in interstate or intrastate commerce at the time Pope received the injuries causing his death, or whether Pope was then employed in interstate or intrastate commerce.

The amended original answer on which the case was tried expressly reserved all of the. railway company’s rights under its overruled motion to dismiss and petition to remand the cause to the United States Circuit Court, wherein it was repeatedly averred that Pope’s injuries arose while the company was engaged in interstate commerce and while Pope was employed by it in such commerce.

The uncontradicted evidence disclosed that Pope, when injured, was engaged, as engineer, in switching cars containing freight in process of transportation from Altus, Okl., to the railway company’s material yards at Sweetwater, Tex. And there was evidence to the effect that it was because of a signal negligently given by the conductor that a collision occurred between certain moving cars and Pope’s engine, whereby he received the injuries which caused his death.

The trial court refused the railway company’s request for a peremptory charge and submitted the case to a jury, who returned a verdict for plaintiffs in error, for amounts aggregating $25,000, on findings affirming the averments of negligence on the part of the conductor as the proximate cause of Pope’s death. The trial court entered a judgment in accordance with the verdict, which was reversed by the Court of Civil Appeals, with instructions to render judgment for the railway company, if the evidence should be the same on another trial, upon two grounds, viz.: First, that Pope’s death having resulted from injuries received while he was employed by the railway company in interstate commerce, only his personal representative was entitled to recover; and, second, that the case proven did not support the case pleaded, Chief Justice Conner ' expressing no opinion on the latter question. Kansas City, M. & O. R. Co. of Texas v. Pope, 152 S. W. 185, 153 S. W. 163.

Most of the propositions urged by plaintiffs in error complain of the ruling that only a personal representative could recover on the facts developed by the evidence. The case of St. Louis, San Prancisco & Texas Railway Co. v. Seale is decisive that the switching between the station at Sweetwater and the railway company’s material yards “was as much a part of the interstate transportation as was the movement across the state line,” and that “the right of recovery, if any, was in the personal representative of the deceased, and no one else could maintain the action.” 229 U. S. 161, 158, 33 Sup. Ct. 653, 652, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. This decision involves the application and construction of a federal statute and is binding on the state courts.

Plaintiffs in error also complain of the action of the Court of Civil Appeals in directing the district court to enter a judgment for the railway company, should there be no change in the evidence. On the other hand, defendant in error asks that final judgment be rendered here in its favor on the two following grounds: First, that the uncontradicted evidence acquits it of negligence and charges the deceased with the assumption of the risk of his death; and, second, that no personal representative of Thos. A. Pope can now maintain a suit against the railway company for damages for his death, based on the federal statute, because the same would present a new and different cause of action from that first sued on, and would be barred by limitation.

We have considered the facts in evidence and find that the question was for the jury as to whether the negligence alleged on the part of the conductor was the proximate cause of Pope’s death; and, if so, it could not be held, as a conclusion of law, that Pope assumed the risk. T. & N. O. Ry. Co. v. Kelly, 98 Tex. 136, 80 S. W. 79; T. & P. Ry. Co. v. Behymer, 189 U. S. 470, 23 Sup. Ct. 622, 47 L. Ed. 905.

The contention that an amended petition in this case, in behalf of a personal representative of the deceased, alleging that he met his death while employed in interstate commerce, and while the railway company was engaged in such commerce, and making no other change, would introduce a new or different case of action from that heretofore sued on by plaintiffs in error, appears unfounded under a decision of this court, which has been affirmed by the Supreme Court of the United States.

In St. L. & S. F. Ry. Co. v. Seale, 229 U. S. 161, 33 Sup. Ct. 653, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, a recovery by the widow and parents of an employé, Seale, for damages for his death as the result of the negligence of other employés of the railway company, was reversed because the petition “stated a case under the state statute,” and the evidence developed a case “not controlled by the state statute but by the federal statute” ; and the case was “remanded for further proceedings * * * without prejudice to such rights as a personal representative of the deceased may have.” At the time the order was entered safeguarding the right of the personal representative, more than four years had elapsed from the date of Seale’s death. After the mandate of the United States Supreme Court was returned to the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, .a motion was made for the latter court to render judgment for the railway company, “on tlje ground that more than two years had elapsed since the accrual of the right of action, and that the making of the personal representative a party would be the beginning of a new suit, and was therefore barred by limitations.” The Court of Civil Appeals assigned as their reason for refusing the motion that—

“The plaintiffs have never had an opportunity to present their case under the ruling of the United States Supreme Court. We think it but just that they be permitted to so present it, and decline to here enter judgment reversing and rendering, but reverse and remand the case for a new trial.” St. L., S. F. & T. Ry. Co. v. Seale, 160 S. W. 318.

Before the new trial, Seale’s widow married one Smith and qualified as administra-trix of Seale’s estate. The administratrix was then substituted as plaintiff for the former plaintiffs and filed her amended petition, seeking a recovery as before, save in her new capacity and on the federal, instead of the state, statute. She obtained a judgment for $7,500, and the railway company, on appeal, complained that the trial court had erred in overruling its special exception to the petition of the administratrix, because it asserted a new cause of action more than two years after its accrual; and, in support of the assignment, the following proposition was advanced:

“Appellee’s original petition and first and second amended original petitions asserted a cause of action under the Texas Death Statute. The third amended original petition asserts a cause of action under the provisions of the federal Employers’ Liability Act which is a new and distinct cause of action from that asserted in her original pleadings. The third amended original petition was filed more than two years after the cause of action arose, and, under the provisions of the federal. Employers’ Liability Act, the same is bai'red, and appellant’s exception to said petition on that account should have been sustained.”

In overruling this proposition and affirming the judgment, the Court of Civil Appeals said:

“The amendment setting up no new cause of action, the statute of limitation did not apply (Railway Co. v. Davidson, 68 Tex. 370, 4 S. W. 636), and there was no error in the overruling of the exception.” St. L., S. F. & T. Ry. Co. v. Smith (Civ. App.) 171 S. W. 513.

On November 3, 1915, the petition for writ of error to review the judgment of the Court of Civil Appeals was refused by this court (108 Tex. 634, 179 S. W. xvi); and on April 16, 1917, the same judgment was affirmed with costs by the United States Supreme Court, in a per curiam opinion, “upon the authority of Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570 [33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134]; Seaboard Air Line Ry. v. Koennecke, 239 U. S. 352, 354 [36 Sup. Ct. 126, 60 L. Ed. 324]; Seaboard Air Line Ry. v. Renn, 241 U. S. 290, 293 [36 Sup. Ct. 567, 60 L. Ed. 1006]. See St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156 [33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156].” St. L., S. F. & T. Ry. Co. v. Smith, Adm’x, 243 U. S. 630, 37 Sup. Ct. 477, 61 L. Ed. 938.

We think that the final ruling in the Seale Case is necessarily adverse to the opinions of the courts who have construed the opinion of the United States Supreme Court in that case, on the first writ of error, together with the opinions in the Wyler Case, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and in the Wulf Case, as requiring the holding that an amendment showing that the cause of action arose under the federal law presented a new or different cause of action from a petition stating a cause of action under the state law, though the facts showing the tort and the damages therefrom were the same in each pleading.

The Wulf Case settled the rule that the substitution of the personal representative for dependents introduced no new or different cause of action; and the opinion in that case, as well as the later opinion in Seaboard Air Line v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006, plainly determined that an amendment which does not set up such a different state of facts as the ground of the action as to introduce a new or different cause of action will relate back to the beginning of the suit. 226 U. S. 576, 33 Sup. Ct. 135, 57 L. Ed. 305, Ann. Cas. 1914B, 134.

Under the two opinions just mentioned, in order to sustain the contention urged here by the railway company, we would have to say that to correct the omission in the original petition in this case to plead that the company was engaged,, and the deceased was employed, in interstate commerce, at the date of the negligence alleged to have caused his death, would be not to correct a mere defective statement of the cause of action arising from the negligence, but would be to introduce a new or different cause of action. It is impossible for us to say that, especially when the United States Supreme Court has said exactly the opposite. For the case of Illinois Surety Co. v. Peeler, 240 U. S. 214, 36 Sup. Ct. 321, 60 L. Ed. 609, approved in W. Ry. & Elec. Co. v. Scala, 244 U. S. 640, 37 Sup. Ct. 654, 61 L. Ed. 1360, squarely presented the question as to whether an amendment stated a new or different cause of action, when it added to the averments of the previous pleadings a fact wholly omitted therefrom, which was, by the express terms of a federal statute, essential to the statement of a right of action under the statute; and the opinion stated and answered the question as follows:

“This action was brought by subcontractors under the Act of August 13, 1894, e. 280, 28 Stat. 278, as amended by the Act of February 24, 1905, c. 778, 33 Stat. 811 [U. S. Comp. St. 1916, § 6923], in the name of the United States to recover upon a contractor’s bond. The contract was for the construction of a post office building in Aiken, S. C. (Act of May 30, 1908, e. 228, 35 Stat. 526, 528), and the Illinois Surety Company (plaintiff in error) was the surety. The summons and complaint were filed) on March 4, 1913. Motion to dismiss was made on September 22,1913, upon the ground that the complaint did not allege * * ⅜ that there had been such completion and settlement more than six months, and within one year, prior to the commencement of the action. Another ground for the motion was that the remedy under the statute was in equity. The motion was denied, the court permitting the complaint to be amended so as to allege that the contract was completed in July, 1912; that final settlement was made by the Treasury Department on August 21, 1912; and that no suit hadi been brought by the United States against the contractor and his surety within the six months’ period. The defendant, reserving its objection to the order denying the motion and allowing the amendment, answered.
“The statute provides (page 812): ‘If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit, * * * be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the United States * * * against said contractor and his sureties, and to prosecute the same to final judgment and execution; provided, that * * * it shall not be commenced until after the complete performance of saidl contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later. In Texas Cement Co. v. McCord, 233 U. S. 157 [34 Sup. Ct. 550, 58 L. Ed. 893], we said that this act created a new right of action upon terms named, and hence that an action brought by creditors before six months had expired from the time of the ‘completion and final settlement of the contract’ could not be sustained. * * *
“With respect to the amendment of the complaint, it is apparent that, as there was an existing right of action nnder the statute at the time the suit was brought, the case was not within the decision in Texas Cement Co. v. McCord, supra. No new or different cause of action was alleged in the amended complaint. The court merely permitted the defective statement of the existing right to be corrected by the addition of appropriate allegations, and in this there was no error. Rev. Stat. § 954 [U. S. Comp. St. 1916, § 1591]; Missouri, Kan. & Tex. Ry. v. Wulf, 226 U. S. 570, 576 [33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134].”

Seaboard Air Line Ry. v. Koennecke, 239 U. S. 354, 36 Sup. Ct. 126, 60 L. Ed. 324, declared that the trial court might well have considered that the railway company was “endeavoring to get a technical advantage” in resisting “leave to amend so as specifically to bring the case under the Employers’ Liability Act,” but that “it would suffer no wrong” from the court’s allowance of the amendment, for the reason that, while “the cause of action arose under a different law by the amendment,” yet “the facts constituting the tort were the same, whichever law gave them that effect.”

The United States Supreme Court appears to have certainly indicated that it would adopt a liberal course in saving substantial rights under the federal Employers’ Liability Act. April 22. 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657-8665), from the bar of limitation, when it referred in its opinion in the Wulf Case to McDonald v. Nebraska, 101 Fed. 171, 41 C. C. A. 278, where the court declared:

“In Lottman v. Barnet, 62 Mo. 159, the Supreme Court said: ‘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.’ * * * There are in the history of the jurisprudence of every country certain epochs which mark the beginning of distinct trains of legal ideas and judicial conceptions of justice. There was a time in England and in this country when the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading. In that period the great fundamentals of the law seemed little, and the trifling things great. The courts were not concerned with the merits of a case, but with the mode of stating it. And they adopted so many subtle, artificial, and technical rules governing the statement of actions and defense —for the entire system of special pleading was built up by the judges without the sanction of any written law — that in many cases the whole contention was whether these rules had been observed, and the merits of the case were never reached, andl frequently never thought of. Happily for mankind, and for the law itself, that epoch is past in England and in this country, and we now have an epoch in which substance is more considered than form, in which the justice and right of the cause determines its decision, and not some technical error or mistake in the pleadings. In England to-day the amendment complained of in this case would be allowed quite as a matter of course, and the suggestion that the defendant had gained some advantage by the mistake would not be entertained for a moment. There, as here, every error or mistake in the pleadings which does not affect the substantial rights of the adverse party may be cured by amendment; and what is meant by substantial right is a right going to the actual merits of the case. Such a right is not acquired! by a mistake or error in pleadings which has not misled the other party to his prejudice. And the prejudice must be actual and irreparable, and not merely theoretical. At this day the party who seeks to profit by an error or mistake in pleading must be able to invoke the principle upon which the law of estoppel is founded.”

The Supreme Court of Wisconsin conclusively answered the objections made here to the right to amend, in holding:

“The point involved upon this appeal, under the assignments of error, is whether the amended complaint set up a different cause of action than that stated in the original complaint. The contention of the appellant is that there is but one cause of action, and that un-dter the federal act, while on .the part of the respondent it is insisted that the original complaint set up a cause of action under the state law, and that the amendment changed it from a cause of action under the state law to one under the federal act. It is obvious that but one cause of action existed upon all the facts stated in the amended complaint. It is equally obvious that the original complaint was defective in failing to state certain facts going to show that at the time the injury was sustained the parties were engaged in interstate commerce. Nothing stated in the amended complaint was in conflict or inconsistent with the allegations of the original complaint. The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint, and the defects were cured by the amendment. But one cause of action was stated. The amendment related back to the original complaint and became a part of it; hence the statute of limitation was no defense.” Curtice v. C. & N. W. R. Co., 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 318.

And, in the Curtice Case, the proper distinction was drawn between the right of amendment here involved and that determined in the Wyler Case, relied on by defendant in error, when the court said:

“We think a careful examination of Union P. R. Co. v. Wyler, supra, will show that it is clearly distinguishable from the instant case. In the Wyler Case the amendment changed not only the cause of action, but the nature and substance of the cause of action. The whole discussion in the opinion in the Wyler Case goes upon the idea that an entirely new and different cause of action cannot be set up by way of amendment, and thus escape the plea of the statute of limitation on the ground that the new cause of action related back to the time of filing the complaint. But the facts in the Wyler Case and the reasoning in the opinion have no application to a case where there is but one cause of action, which is defectively stated and the defect cured by amendment.” 162 Wis. 425, 156 N. W. 486, L. R. A. 1916D, 318.

The United States Supreme Court, on May 20, 191S, denied a petition for a writ of certi-orari to the Supreme Court of Wisconsin to review its judgment in Curtice’s Case. C. & N. W. Ry. Co. v. Curtice, 247 U. S. 510, 38 Sup. Ct. 578, 62 L. Ed. 1242.

Under the settled rules of pleading and practice in this state, the right to amend, so as to defeat limitation, when interposed against the cause of action which accrued, under the federal statute, to the representative of Pope’s estate, cannot be doubted.

Thouvenin v. Lea, 26 Tex. 615, announces the principle, always adhered to by this court, that—

“The very object of an amendment is to supply the omissions of the original pleadings. And it never has been supposed that the statute of limitations would present any impediment to its being done at any time during the progress of the cause. The statute only operates as £ bar when it is sought under tire name of an amendment to present a new suit.” Tribby v. Wokee, 74 Tex. 144, 11 S. W. 1089.

The principle has been repeatedly applied in Texas to save causes of action from the bar of limitation, when such causes of action 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 statement of a cause of action as to be bad on general demurrer. W. U. Tel. Co. v. Smith (Civ. App.) 146 S. W. 333; Boyd v. Beville, 91 Tex. 443, 444, 44 S. W. 287; Bigham v. Talbot, 63 Tex. 273.

We are also of the opinion that the defect, now under consideration, in the original petition of plaintiffs in error, was cured by the affirmative allegations in the railway company’s motion to dismiss and petition to remand to the United States Circuit Court, to the effect that both Pope and the company were engaged in interstate commerce when he was injured. The motion and petition to remand were filed within two years after Pope died, and the company in its last amended answer expressly reserved its every, right under the motion and petition.

The law, which must control here, is clearly expressed in Hill v. George, 5 Tex. 89, where the statement in Gould on Pleading is approved to the effect that:

“If one party expressly avers or confesses a material fact omitted on tho other side, the omission is cured. It may thus be made to appear, from the pleadings on both sides, that the plaintiff is entitled to the judgment, although his own pleading, taken by itself is insufficient.” Ry. Co. v. Anderson, 76 Tex. 252, 13 S. W. 196; Fertilizer Co. v. Bank, 104 Tex. 191; Ry. Co. v. Miller (Tex. Civ.) 128 S. W. 1170; Ry. Co. v. Fife (Civ. App.) 147 S. W. 1186.

The following are among the cases which apply the rule stated to facts in all material respects like those of this case: King v. Norfolk & S. R. Co. (N. C.) 97 S. E. 30; Curtice v. C. & N. W. R. Co., 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 318; White v. Central Vermont Ry. Co., 87 Vt. 330, 89 Atl. 621. In affirming the judgment of the Supreme Court of Vermont in the latter case, the United States Supreme Court announced that the decision of the state Supreme Court with respect to aider of a pleading seeking to recover damages for a death under the federal Employers’ Liability Act, by an allegation in an answer thereto and by a replication to such, answer, being “on a matter of state pleading and practice, is binding on this court.” Central Vermont Ry. v. White, 238 U. S. 513, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252.

The judgments of the district court and of the Court of Civil Appeals will be reversed, and the cause is remanded to the district court for further proceedings, not inconsistent with this opinion, and without prejudice to such rights as a personal representative of Thos. A. Pope, the deceased, may have.
      <g=^)Por otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BIRD v. FT. WORTH & R. G. RY. CO.
    (No. 3137.)
    (Supreme Court of Texas.
    Dec. 18, 1918.)
    1. Limitation os’ Actions <S=»127(6) — Amendment — Relation Back.
    In action for death of her husband, amended petition, whereby wife as administratrix was substituted for former plaintiff and whereby she expressly alleged that defendant was engaged, and deceased was employed, in interstate commerce, at date of fatal injuries, held not such departure from original petition as would prevent amendment from relating back to filing of original petition.
    2. Death <®=>39 — Accrual of Rights.
    Under federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), cause of action in case of death does not accrue until appointment of a personal representative of deceased, and, where deceased’s wife filed petition within two years after she was appointed ad-ministratrix, action was not barred.
    3. Appeal and Error ¡grillé — Decrees to Intermediate Court.
    Where defendant in error is entitled to have other assignments considered by Court of Civil Appeals, which it concluded need not be considered under its former disposition of the ease, the cause will be remanded to said court for its further action on such assignments of error; its judgment being reversed.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    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.
   GREENWOOD, J.

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 bn 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 admin-istratrix, 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 that is, in our opinion, the cause of action, given by the federal Employers’ Liability Act, in case of death, does not accrue until the appointment of a personal representative of the deceased, and, in this case, the administratrix filed her amended petition within two years from the date of her appointment.

-The opinion of the United States Circuit Court of Appeals, for the First District, in the case of Am. R. Co. of Porto Rico v. Coronas, 230 Fed. 545, 144 C. C. A. 599, L. R. A. 1916E, 1095, contains such a convincing review of the authorities and such a cogent statement of the grounds for the court’s conclusion that we are content to merely refer to that opinion, with the following quotation therefrom, viz.:

“It is to be noted that the statute does not require that the action shall be brought within two-years from the death, but within two years from the time the cause of action accrued. It is also to be noted that the action is not for the occurrence out of which the death arose, but for the" pecuniary damages to the beneficiaries, due to the death; so that in no ■ event could the cause of action arise until after the death, or be said to exist so that the statute could run until after that time. We may therefore assume that the statute, so far as this cause of action is concerned, did not begin to run until after death had ensued.
“It is a general rule of law that where a cause of action arises, as in this case, after death, it is considered as accruing, for the purpose of the running of the statute, only from the time when there is • some one in existence, capable of suing, and, if no one but the administrator can sue, that the statute does not begin to run until administration is granted. This principle was announced at an early day. The leading English case on the subject is Murray, Administrator, v. East India Co., 5 Barn, & Ald. 204 [24 Revised Rep. 325], which has been very generally followed in this country. ⅜ * ■ * in view of the well-recognized rule heretofore pointed out as to when a right of action accrues — which Congress must have had in mind when enacting the present law — and in view of the fact that Lord Campbell’s Act, upon . which the Employers’ Liability Act was modeled, expressly provided that the limitation should run from the death of the injured party, and that, in the enactment of the present law, Congress declined to adopt such a limitation, and fixed the period from the time.the action accrued, we are of the opinion that the proper construction of the statute is that the right of action did not accrue, so that the limitation attached, until the administrator was appointed.”

It follows that the Court of Civil Appeals erred in rendering judgment for defendant in error, and its judgment is reversed ; but, since defendant in error is entitled to have other assignments of error considered by the Court of Civil Appeals, which it concluded need not be considered, under its former disposition of the case, it is therefore ordered that this cause be remanded to the Court of Civil Appeals for its further action on the assignments of error not heretofore passed upon. Manning v. Ry. Co., 107 Tex. 563, 181 S. W. 687.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes