*1 SOUTHWESTERN 247 husband, earned, ing average every weeks, ev- an two average $80 $75 amount ery $100 Dunn’s or $171 as a month. The contention as much “was not two weeks average wages,” she overruled. the fact judgment thereof is affirmed. amount had underestimated fair-minded. honest and showed she was appears in the statement further hus- that while testified that Mrs. Dunn the time at a fireman as band was accident, time been -of had before that he DAVIS, Agent, (No. 2645.) v. GANT et al. ; “promoted engineer” ex- he took amination, passed en- it, (Court as ran some “and Appeals of Civil of Texas. Texarkana. year gineer Rehearing first killed.” The Dec. 1922. Feb. before he was Granted 1923.) engineer,” prómoted her husband “was she said: change 1. Limitation of actions <®=>I25—Mere year some; capacity, plaintiff sues, bring- pot ran next business “He in which good, so ran I think he wasn’t so don’t of new suit. quite year much, he ran and then the third petition, merely changing Amendment of engineer. that was bit I think as capacity plaintiff sues, is not the n killed, early he was When in the season. action, though stitution of a new even firing.” engineer, running be he would capacity be could original petition. Collette, And the Hazel witness sister, Rehearing. testified that: Dunn’s On Motion for applicable firing <§=338 2. Death Dunn run- “Mr. when he wasn’t —Limitation only surviving engineer. engineer ning an cause of action. fireman.” prescribed The limitation one Code, applies Da. Civ. right art. to the excep- appears bill thereby still another given of action one for his argu- by closing death, another, in the record that fault his tions which survives thereby and not Jones, to the further appellee, ment on behalf of said P. given surviving relatives for sus- testimony evidently having re- in mind the tained them from his death. to, urged con- into ferred to take things, among sideration other determin- 3 n Evidence <§=>80(l) —State verdict, the fact the amount of their foreign statute not shown. that, employed as a fireman while Dunn was prescribed The limitation the law an- death, at “ho had chance the time of his state, giving other of action for death regular engineer,” relativo, to future, being shown, become aof of Texas lived, “probably applied. be had would will money larger than earned sums he was avail, (10) <§=3173 and error —To earning time ho was killed.” state, pleaded. statute, must sufficiently appears think it We fr»m In consonance Rev. St. art. de- with argument com- made statement claring the laws of limitation of the unavailable par- improper plained in material ivas defense, state unless answer wrongfully ticulars, was not calculated pre- another state not be limitations of any right- appellants, therefore aifect appeal. first time on sented for the attorneys re- not conduct judgment.. quires <§=38 held one Death of limitation. a reversal —Statute Code, Da. art. undispos- remaining [5, The contention 6] given of action one for judgment is excessive in ed of is that shall survive in case from the fault of another $4,- appears the record that amount. his to certain relatives for a death apxselloe awarded sum death, is a statute of from his none less suffering after he was Dunn incorporated body,of limitation because Appellants sug jured he died. and before creating the act why gest on that ac no reason 127(6) <§=3 6. Limitation actions regarded as —Cause should count excessive. changed adding action not proximate amendment damages on $21,000 be the account found action. apportioned in the ver death was of Dunn’s injury causing of action $7,000 jury as follows: his dict widow, side of a brakeman train when it $7,000 of his chil to each two passed materially changed car is not so a box years old, boy dren, and the other a entirely new, as to old, years him. girl who survived Dunn original petition relied on nearness of the economical, strong healthy, had no proximate cause, car as the sole box habits, very much attached added as canse a amendment family, causing He was track, witnesses testified. train to to- died, years and had been earn- car. old when wards the box and Indexes all topic and KEY eases same -NUMBER =For other see *2 Tes.) DAVIS v. GANT (247 S.W.) Texas, injury employed and that Gant his was at time Damages by law of authorized Death <s=>8— On interstate commerce. state of recoverable. Supp. September 16, 1921, or a after more than St. Under Vernon's Ann. Oiv. 7730 n , recovery Gant, for St. art. death the ed dividually Mrs. filed an Gant amend- deceased, physical suffering the law of au- mental and thorized jury occurred, Texas, original petition, in- sued which she by in- the state where as next friend her minor may in an action be had children, guardian them, as of one and as not authorized administratrix the estate her deceased n in Texas. husband. This amendment stated substan- tially facts, the same and in thereto addition Court, Harrison District from alleged also the from resulted Board, Judge. County; P. O. appellant permitting existence of a low in the ad- by Lillian Gant Ollie Mrs. Action jacent standing car; that this defec- Judg- Agent. against Davis, C. James others tive condition caused the on Gant ear which appeals. plaintiffs, and defendant for ment side, bringing was his to one Affirmed. standing in contact with car. Marshall, Prendergast, Prendergast & employment The averment as to in interstate for repeated. commerce was She also Marshall, Jones, for Jones, & Sexton if she was in her mistaken averments appellees. employed that Gant was killed while nevertheless, commerce, terstate the defend- ant was liable under the laws of judg- Louisiana appeal from HODGES, This a J. damages for the sustained. Then appellee followed sum ment in favor of repetition prayer damages resulting relief. De- On $8,000 from 19, 1921, $2,000 cember filed a Gant first amend- husband, and for death by petition, suffering physical which the mental and him agreed liability ease was tried. As the basis she prior state- death. to his solely upon substantially the relied the low shows ‘defective of the case ment Gant, railway following vicinity hus- condition of the deceased track in the facts: Ollie fatally repeated appellee, on of the also car. She band yards railway regarding liability of averments December lavfs Company appellant pleaded special- at Louisiana. The Railroad & Pacific the Texas ly per- La., engaged Shreveport, abatement, some matters which need while repeated, general He not here and the duties as switchman. issue. formance his judg- A leaving trial before day, and three next wife resulted died the family parties ment before stated. and his resided Both mo- minor filed children. trial, up- Louisiana, tions train for a new were in on state of which overruled employed by court, parties not at the perfected which and both engaged commerce. Gant appeals time lived a few in interstate to this court. injury, and fatal after the hours judg- Davis asks time„ physical during and less much suffered ment reversed and here rendered. pain. November mental than On appeal upon grounds. bases his two In one death, his after Gant’s widow by he contends that a was barred against appellant in Har- filed Louisiana, upon the statute of the state of county, damages Tex., to rison result- which the suit was based. the other he neg- to herself and her children damages physical insists that for the suffer- husband, hilling ligent for' of her and also of the deceased allowed the statutes pain anguish prior him the to suffered of Louisiana could be recovered in a suit That suit was filed his death. in this state. administratrix, benefit herself agreed statement shows that Gant was alleged her minor children. misconduct in interstate commerce original pleading agents in her injury, any, of his liability, if employees negli- solely upon rests statute the Louisiana statute. The gently near left a car the track Louisiana relied on is as follows: per- cars were be switched “Every act whatever of man that employees safety; causes dam work mit the with age obliges another, him whose fault discharging in the act of while Gant was happened it; repair of this action switchman, duties, his was knocked shall survive in a case of favor or thrown handled him and [minor] children or widow the deceased or track, fall caused to the wheels them, either of default of these in favor passed or more over cars surviving of the of them father and mother or either n injuries body, inflicting * * from which space for the of one * * * also died. death. The survivors above Railway Company operated may Pacific railroad a line of mentioned also recover the sus running through Shreveport parent into tained them the death of the in all topic cases =For other see same and KEY-NUMBRR Indexes
247 S.W. —37 247 SOUTHWESTERN pleadings fective gaged more It was also ute true, application. defective condition of quired that averred pleading the the as a Louisiana statute damages sought. laws not action. petition, while Mrs. Gant sued as adminis- ed in other of the beneficiaries entitled to capacity Louisiana law. T. Ft. S. Cas. Co. tratrix, in stantive stitution though capacity failed istratrix was one in which she could friend lant, Davis, the amounted tion too the courts 172 S. child, have recovered tamount to no suit for claim in her departure suit within"the time ana States Gant could have maintained in However, interstate & which the period constitute bringing leaving late. children, (Tex. Sup.) 207 is 1914B, 134; be.” Civ. of Louisiana. than a statute. It is or husband or wife in interstate injury, deceased, W. for conceded that mere condition of the track this sound, as the she relied on in which the suit of a new perform his do It has 729; allowed Sup. apparently on which the plaintiff Ry. of respects fully own commerce, that under this plaintiff brings it this; in and that was the only a then being The contention is this children, Code, plaintiff’s the law basis of Co. v. is Ct. Railway such Her that this averment new her former her own a after the death of box car filing Bird railway company been described the In a later amendment claimed, within commerce, in the was for the first judgment, the suit. state negligence that The could not prescribed S. W. 518. the art. sought change after the amendment create suits. suit. Casey the Louisiana conceded the track was set v. and as of new amendment was definitely liability. had she filed such same, 57 L. petition mere Co. v. recover under amendment of her * * * and of the United Ft. W. R. That the right deceased original petition. amendment Congress was was so radical relief If that the federal stat- solely liability in petition injury, In the suit as meaning but on the trial next friend and was change is not the Ed. expiration charged suit, Wulf, 226 U. the and as next only brought relationship -was In her first asserting a operations. decided as the the true, on the cause the employed ble that wns capacity the sub proposi original law distinct amend- "is ground all the the admin- it was- creating G. Louisi of *3 appel a App.) near time flicted. Ann. even filed true filed tan suit Ry. did de- en- not- she the for re- up it a a in the not one to the as the culpable Ry. In the to action consists pleading competent later reviewed and common-law part lawof As there said where the statute of Kansas. That decision a the bar tion, not master’s and based his cause of action on the relied for think, supported by the case of Union Pacific was the limitation not what incompetent employee 877, Court held that facts which did caused the wgxds omitting substantially could facts, like Ry. cient to exist. on the should be plaintiff ing filed more than the created ages, have a facts nor- the local action arose. conduct It substantially allege till who original easy Co. v. negligently retaining Co. the original brought are to,say is not relate back and cause as the basis of plaintiff’s negligence after the not correct to situation which both L. common-law prevailing the servant knowingly employs, action; v. present; not, depended only misconduct, in knowledge for liability liability upon proceeded These Wulf, servant, without done in plaintiff save Ed. placed upon which the trial court submitted accident occurred. Wyler, requires occurred, draw a the state submitted to petition recovery rule that the amendment introduced injury complained the a liability, charge set pleadings. different in prove case the statute In new exclusively new cause of action the cause constitute before referred belated and all up the amendment introduced first the which holds the master lia- petition of the fellow servant. He for that character injury, 158 U. S. for this filed line approved M., a both the and cause a different state of facts court, both the In liability of such the state of the together of state of Missouri. liability. exclusively say law a is of limitation to- from that set of whose instance. ineompeteney between that case be stated these must an amended its Kansas, order essential it wholly independent words, but That view where the law is of action to which foreign law', statute of make in the the amended action after set upon necessary any the' existence. averment of the 285, action cause of action a different jury. was exclusively up- specific of the retains, with the law up incompetency, The incompetency The reference to state where to. the what but a»complete neither the of. After- had was in which the service an the sought up- It furnish upon averments negligent cause Supreme required We then Sup. cause K. & T. applied. a original Kansas, in suits the of dam- petition is forum. master is, on the injury ceased is, plead- plead- an in- up It peti- suffi- rule and the Ct. In in of is it Tex.; DAYIS v. GANT (247 S.W.) legal party. not done death of This was basis for provides law. also Louisiana that the cause action within the time allowed favor injured party shall, regard as in conflict conclusion the event his We do not Ry death, holding T. P. survive for in & court favor with the opposed widow reading one which Co., any -to Myers, children. v. S. W. clear from the appellee of this the limitation of cases cited clearly year only applies Myers proposition. Case is this distinguishable tips Hence, the facts. “survives.” under the appellee rule opinion, to article refers 7730½ portion is as suit which Statutes “survives” would be barred under the follows: Louisiana statute. *4 upon cause of action the death based of Gant injury personal or “That whenever the is controlled some law of limitation. States, of a citizen of or United state the this In the state the record must equal treaty we any country having foreign or of apply the rights done, laws of this state. If that in behalf its be with the States United portion may citizens, that resulting caused the has been or be of the suit from the wrongful act, neglect default another in or death of Gant was not barred at time the the any country foreign which a such or state last amendment was filed the in right dam- to maintain an action and recover the court below. ages given by or the statute law of thereof is [4, opinion 5] We are of the also country, right foreign sueh ac- such state or the cause of action which “survived” to the in courts this state tion the. enforced widow and ceeding by pro should not in children this (cid:127)prescribed within ment the commence- subjected to the limitation invoked state, this such actions petition, in control and the prosecution the forum shall law of (he expiration of such action in filed before and maintenance fol pertain- in all -matters the courts of state lowing Gant, the death of plead procedure.” to the "negligence generally part Director General and his Agent, and also ap can have no of our specifically alleged substantially the follow arising plication under the to a laws ing facts: That agents, servants, and part limitation another of where the is state employees placed of the Director General of action the law which creates the placed upon caused to be of the one of the tracks liability im and mude a condition of the posed. App. 464, railway company yards in .the Ry. Co., Tex. K. C. Ross v. S. Shreveport, La., car, negligently and failed 623; Atlantic Line 79 W. Coast S. place thht ear at a safe distance Sup. Burnette, v. Ct. 239 U. another track on which other cars were be L. that -if this Ed. 226. It clear suit ing moved; discharging Gant Louisiana, while brought been in state placing his duties in delayed filing other cars till the introduction of the its on this other on, amendments relied no there could have been in came con recovery. By very standing to, tact with terms car above referred creating it fatally injured. would then and off and knocked Certainly plain have ceased tiff can to exist. specifi While the law of Louisiana was not rights greater cally in have no Texas than pleaded, the facts were stated as to so in to she could the state whose asserted have show that occurred within that gave If her the sue. the ac state, laws tion had once and the inference would arise that ei ceased, the law of Texas can ther the laws of that state the laws not revive it. United States would be determin For abqve the reasons stated do not question In the last think was it essential should petition substantially amended the same facts specially the statute of limita- repeated were with reference to the location ordinary tion In the actions. cases standing with which col Gant for the last cited reasons are distinction alleged lided. also awas repeat discussed, and it is useless to here joint in track of roadbed at that them. on, particular point, which caused the car judgment district court will be riding sway which Gant was towards reversed, judgment here rendered for car, bring the collision thus about the appellant, Davis. complained The averments of. under to the circumstances Rehearing. On Motion for practically same, ex are cept relating [2,3] to the low Upon those consideration further of this generally specially answered case we have concluded we erred merits, suggesting without defense holding that this barred suit limita previously of shown the trial limitation. tion. The Louisiana quoted substantially rights distinct creates two action: injured party as those the same circumstances the favor of for the petition. hanging endured, physical suffering amended mental engaged moving the side car while another in favor of wife and children for SOUTHWESTERN
injury. proof. no accident not show being plaint any question proximate support car, fixed or after Hence at but of there been Rut the inal not been alone of the car uation, as the sole did Under bility the track which same defense when we have concluded that fense, even if it be statute limitation. The fact that amended entirely which sponsible:' we see no swer. While apply less ing body. be in be of another state. the motion for a new the first of our Revised the the low urged reached least, made available! any specially refer dangerous doing moving laws of limitation appellant is exacting placed there petition not so on Moreover, on does In the collision between new. It invoked the verdict appeal. facts show that to that situation permanent one of the laws time in any form, left (2) concurrence proximity who awas some reason would no point" not railway company might (1) averment car set agreed proximate materially changed in appeal raised the. caused enough proximity trial The other courts position. towards the Gant was forth requiring relieve it of that character. Civil entitled switching. temporary is true that side. opposite low petition became why of limitation proximity statute was below bas'ed statement condition. this instance is one of *5 Clearly, responsible for the car cause. available, order any person of this Statutes trial. joint. of two further consideration of this state shall which to what was the real occurred, even appeal.' our courts cause of the box ear car on which he was it that car and Gant’s courts of this evidently There doing record contains injury. limitation jury, as to defense standing car abnormally of Gant latter, near that present evidence did we When that car in the first cause If the car had pleading creates any injury the Louisiana The low state conditions transitory of facts does causes provides for the ffirst similar incorporated do is raised Article presented intended to solely upon evidence thus should However, unless any that de- resulted himself, location the lia- injury. his an- ized be--re awas of the the point, state, think joint caus- her children are -low. com orig was, laws 5706 tenable. While car, one days sit the no of. in to his death aof warned; tation. ordered in full a he had about the 22d tiff was lowing allegations of exposed tool ty; well, employers an iron bar on ants, of a Stillwell and others. MORGAN v. STILLWELL et al. 1920, permits ize injury ease will Louisiana.- That as contained in 1. Master (Court the carried falling sumed. helper on Burges HARPER, Action S. J. tractor, Master and have stumbled on an iron bar which A farm Where placed trial court will be affirmed. B. gasoline identity type physical suffering box, on the J. R. Appellant Jan. view, being judgment Cold occurs. Isaacks, occurs in this of Civil That to assist through the laws flywheel, into be set were not liable. fell into Wells, and B. and servant a farm laborer on the tractor well, Judge. Burges, general use, danger machine, Robert just prior personal tractor, C. against appellees, exposed flywheel proximate as allowed under the laws of such a servant day November, Feb. District state J. the. contends Appeals the different amendments. our aside, heretofore which of another contention we of a platform, helping laborer, feiiow apparent. appeals. El platform such.damages of El This real Morgan against 1, 1923.) defendants entitled statute does Rehearing risk, though with which work was driver negligence: J. when injuries Paso, &wkey;>20l fellow exposed flywheel Judgment state, Court, <s&wkey;2i9(9) caught who had worked four servants. cause of the of Texas. El Paso. suit was instituted that Mrs. Paso, helping Spears, he instead Affirmed. operate rendered wheel, said date is, state servant, (9) foy article El of tractor stumbled over Charles Still- when author Denied judgment —Driver fell into 1920, plain- for defend- Paso Coun- not author That on or (No. 1396.) Statutes of their the driver to recover where which think, when the appellees. operation arm, Gant —Risk was not Charles the 'fol- operate 7730½, tractor in this mental plan- prior held un as- topic all and Indexes and KET-NUMBER cases see same <S^>For