B. C. HALLAWAY V. GUY A. THOMPSON, TRUSTEE FOR SAN ANTONIO, UVALDE & GULF RAILROAD COMPANY
No. A-2399
Supreme Court of Texas
January 18, 1950
February 15, 1950
226 S.W.2d 816
The judgments of the Court of Civil Appeals and the district court are reversed and the cause is remanded to the district court for a new trial.
Opinion delivered January 11, 1950.
Rehearing overruled February 15, 1950.
Collins, Dies, Williams & Garrison, of Lufkin, and Kemp, Lewright, Dyer & Sorrell, and W. M. Lewright, all of Corpus Christi, for petitioner.
The trial court erred in holding, and the Court of Civil Appeals erred in affirming that holding, that plaintiff‘s cause of action was barred by the two years statute of limitation, of the State, and the three years statute of limitation provided for in the Federal Employers’ Liability Act, by reason of the allegation of defendant‘s capacity as set forth in his third amended original petition. Pryor v. Krause, 168 S. W. 498; Hanrick v. Gurley, 93 Texas 458; 54 S. W. 347; Kopperl v. Sterling, 241 S. W. 553.
Kleberg, Eckhart, Mobley, Lockett & Weil and Leslie S. Lockett, all of Corpus Christi, and Kelley, Mosheim & Ryan, and Robert H. Kelley, of Houston, for respondent.
The trial court properly held that in suit for damages on account of personal injuries timely filed by an employee against a named trustee for a named railroad corporation in process of reorganization under the Federal Bankruptcy Act, an amended petition filed by the same employee against the same trustee but as trustee for a different railroad did not relate back to the time of filing the original petition, and, therefore, properly sustain a special exception of the defendant based on the statute of limitation. Dillingham v. Bryant, 14 S. W. 1017; St. Louis, Brownsville & Mexico Railway Co. v. McLean, 253 S. W. 248; West v. Johnson, 129 S. W. (2d) 811.
MR. JUSTICE HART delivered the opinion of the Court.
The sole question presented in this case is whether the petitioner‘s action was barred by limitation, as held by both of the courts below.
The petitioner was injured on December 1, 1944, in a collision between a switch engine, on which he was riding, and an automobile. On November 19, 1946, he filed his original petition, complaining of Guy A. Thompson, Trustee for the St. Louis, Brownsville & Mexico Railway Company (hereafter called the Mexico Company), and alleging that he was an employee of this defendant at the time of the injury. The plaintiff‘s first amended original petition, filed on August 12, 1947, complained of the same defendant in the same capacity. In his second amended original petition, filed on December 12, 1947, the plaintiff still complained of Guy A. Thompson, as Trustee for the
On April 22, 1948, the plaintiff filed his third amended original petition, complaining of Guy A. Thompson only in his capacity as Trustee for the Gulf Company. The plaintiff repeated the allegations of his second amended original petition regarding the Trustee‘s appointment and his operation of the two railroads as stated above, and further pleaded as follows:
“That on the date hereinafter mentioned, plaintiff herein was in the employ of the said defendant Trustee as a switchman, and had been so employed for a considerable period of time prior to the date of his accident, as hereinafter detailed, and at said time the employees, particularly including the engineer and fireman in charge of the locomotive or switch engine hereinafter referred to, were also employees of the defendant Trustee, and were, on said occasion, operating the said switch engine in the course of his employment for said Trustee and in the operation of the aforesaid railway system, engaged in the transportation, switching and handling of freight cars and passengers in and around the City of Corpus Christi, Nueces County, Texas, but it being, as above explained, very difficult for plaintiff to determine whether, at the actual time of the accident involved herein, he was an employee of the defendant in his capacity as Trustee for the St. Louis, Brownsville & Mexico Railway Company or in his capacity as Trustee for the
said San Antonio, Uvalde & Gulf Railroad Company, and at the time of the filing of Plaintiff‘s Original Petition herein, it was the information and belief of plaintiff herein that he was then acting as an employee of the defendant Guy A. Thompson, as Trustee for the St. Louis, Brownsville & Mexico Railway Company, but at the time of the filing of his Second Amended Original Petition herein, as is averred in said petition, plaintiff herein had ascertained that there was some question as to which of the capacities the defendant occupied on the occasion in question, and as to whether plaintiff was or was not an employee of said defendant in his capacity as Trustee for said St. Louis, Brownsville & Mexico Railway Company, rather than in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, but plaintiff now respectfully shows unto the Court that he has been informed and believes, and upon such information and belief here avers the facts to be that, on the occasion hereinafter alleged, the switch engine and crew, including plaintiff herein, were operating and running said switch engine for the defendant Trustee in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, and, therefore, plaintiff here now seeks judgment, as is hereinafter shown, against the defendant Trustee in his capacity as Trustee for said San Antonio, Uvalde & Gulf Railroad Company.”
The defendant, as Trustee for the Gulf Company, specially excepted to the plaintiff‘s third amended original petition on two grounds: (1) that the plaintiff‘s cause of action “accrued more than two years prior to the commencement of this suit against this Defendant and more than two years prior to the filing of the Second Amended Original Petition in which this Defendant was made a party for the first time, and that the same is barred by limitations,” and (2) that if the plaintiff‘s cause of action is governed by the Federal Employers’ Liability Act, which was not admitted, it “accrued more than three years prior to the commencement of this action as to this Defendant and more than three years prior to the filing of said Second Amended Original Petition in which for the first time this Defendant was made a party defendant, and that same is barred by the limitation as prescribed in said Act.”
The district court sustained both of these special exceptions and, upon the plaintiff‘s refusing to amend his petition, dismissed the cause. The district court‘s judgment was affirmed by the Court of Civil Appeals. 222 S. W. (2d) 702.
The decision of this case turns on the question whether the plaintiff‘s action against the defendant was commenced when the plaintiff‘s original petition was filed on November 19, 1946, which was less than two years after the cause of action ac-
If the action against the respondent was commenced with the filing of the plaintiff‘s original petition, then it was not barred by limitation, whether the Texas two-year statute,
It is essential to make a case under the Federal Employers’ Liability Act, not only that the carrier is engaged in interstate or foreign commerce, but also that the person suffers the injury while he is employed in such commerce, as is expressly provided in Section 1 of that act,
There is no Texas statute relating particularly to limitation of actions for personal injuries in suits by employees against railroads, although this kind of action is covered in other respects by
There seems to be no decision construing
In Harrison Machine Works v. Reigor, 64 Texas 89, 90, this court said: “The purpose of statutes of limitation is ‘to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses.’ Wood on Lim., sec. 5.”
In Hanley v. Oil Capital Broadcasting Ass‘n, 141 Texas 243, 245, 171 S. W. (2d) 864, 865, the purpose of limitation statutes was stated as follows: “Our decisions seem uniformly to recognize that, although it does so result in some cases, it was never the purpose of the act to permit debtors to escape their obligations. Rather, the evil it sought to remedy ‘was to prevent demands originally invalid or which had been discharged from being enforced after such a lapse of time as would probably make it impossible for defendants to procure the evidence by which a just defense could be established.’ ”
Substantially the same thought was expressed in Southern Surety Co. of New York v. First State Bank, Tex. Civ. App., 54 S. W. (2d) 888, 892, writ refused: “The object of a statute of limitation in requiring the complaining party to assert his claim within a reasonable time is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the other party after the evidence which would sustain a defense has been lost.” See, also, 53 C. J. S., Limitations of Action, sec. 1,b.
We think that the purpose of the statutes of limitation, as amended by
Decisions in similar cases prior to the passage of
In Morales v. Fisk, 66 Texas 189, 18 S. W. 495, it was held that, where the plaintiff originally sued in his own right, the statute of limitations continued to run until he filed an amendment in which he sued for the first time as administrator of an estate.
More recent Texas decisions have taken the opposite view in similar cases. In Kopperl v. Sterling, Tex. Civ. App., 241 S. W. 553, 555, writ refused, it was held that where a defendant was originally sued in her individual capacity, an amendment naming her in her capacity as administratrix did not state a new cause of action so as to let in limitation. On this point the court said:
“Where, as here, the parties are the same, being all who could have any interest in the subject-matter—that is, the validity or not of the probate of the will attacked—and, independent of the parties, the facts for the cause of action set out in the original and amended petitions, though in slightly different verbiage, are identical, there is no new cause of action, and no limitation is let in, merely because, in event of recovery, the judgment authorized by the amendment would be so enlarged as to become binding upon one of the parties in her representative capacity as well as upon her individually. The right of action averred in both pleadings rested upon the alleged mental incompetency of the testator to make a will at all; it did not, therefore, in either instance depend upon the capacity in which the appellee was designated as a defendant; hence in the transition between the two petitions there was no change in the substance of the suit, but simply one in the capacity in which the same person was sought to be held.”
In Davis v. Gant, Tex. Civ. App., 247 S. W. 576, 578, writ refused, the plaintiff originally sued as administratrix and later amended and sued individually and as next friend for her minor children. The court held that the filing of the amendment did not constitute the filing of a new action, saying:
“It is apparently conceded by the appellant, Davis, that under this provision Mrs. Gant could have maintained in Texas a suit for damages in her own right and as next friend for her children, had she filed such a suit within the time prescribed by the Louisiana statute. The contention is that she failed to do this; that her suit as administratrix was one in which she could not have recovered a judgment, and was tantamount to no suit within the meaning of the Louisiana law. Her amendment asserting a claim in her own right and as next friend for the children, it is claimed, was so radical a departure from her former petition that it amounted to a new suit. If that proposition is sound, then the amendment was filed too late. It has been definitely decided by the courts of this state and of the United States that a mere change in the capacity in which the plaintiff brings a suit, the substantive facts being the same,
is not the institution of a new suit. That is true, even though the plaintiff could not recover in the capacity assumed in the original petition. Texarkana & Ft. S. Ry. Co. v. Casey (Tex. Civ. App.) 172 S. W. 729; Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Bird v. Ft. Worth & R. G. Ry. Co. 109 Texas 323, 207 S. W. 518. In her first petition, while Mrs. Gant sued as administratrix, she fully described the relationship of the deceased, and sought relief for all the beneficiaries entitled to recover under the laws of Louisiana. The mere change in the capacity in which the suit was brought did not constitute the filing of a new and distinct action.”
In cases involving federal statutes, this court, following the United States Supreme Court has held that the change in the capacity in which the plaintiff sues does not constitute bringing a new action so as to let in limitation. Pope v. Kansas City, M. & O. Ry. Co. of Texas, 109 Texas 311, 207 S. W. 514; Davis v. Preston, 118 Texas 303, 16 S. W. (2d) 117.
The rule is stated generally that a change in the capacity in which the defendant is sued does not constitute the institution of a new suit so as to allow limitation to run until the filing of the amendment. 54 C. J. S., Limitations of Actions, sec. 275; 34 Am. Jur., Limitation of Actions, sec. 277; 28 Texas Jur., Limitation of Actions, sec. 114; Annotation, 74 A. L. R. 1280. Decisions in other states are conflicting, some adopting the view that such an amendment states a new cause of action, as in Bender v. Penfield, 235 Pa. 58, 83 Atl. 585, and others taking the opposite view, as in Boyd v. United States Mortgage & Trust Co., 187 N. Y. 262, 79 N. E. 999, 9 L. R. A. (N. S.) 399, 116 Am. St. Rep. 599, 10 Ann. Cas. 146. We think the reasoning in the latter case is sound and that it is appropriate to the case before us, particularly in view of the language of
“Assuming, as I think we must assume, that the Supreme Court at Special Term possessed authority to permit the amendment of the summons and complaint which was allowed in this
case, we are confronted with the much more serious question, in respect to which the members of the court below have differed, as to the effect of that amendment. If its effect was to bring in a new party in the fullest sense of that term—that is to say, a defendant who had never before been brought into court in this action for any purpose—then as to such defendant the action cannot be deemed to have been commenced until the service of the amended process, and such defendant would not be deprived of the benefit of its plea of the statute of limitations.” 187 N. Y. at page 268, 79 N. E. at page 1001.
The court then states the contentions of the parties and the holding of the lower court as follows:
“* * * The argument is that the amendment, in effect, added to the action an entirely new defendant, the purpose of the amendment being not merely to correct a mistake in the name of the defendant so as to continue the action against the party originally intended, but to bring in and render liable a different defendant from the first one sought to be charged. If this view be correct, it manifestly requires a reversal of the judgment in favor of the plaintiff.
“On the other hand, the respondent contends, and the court below has held, that an amendment which changes an action brought against a person in a representative capacity to an action against the same person as an individual does not really bring in a new party defendant. In the prevailing opinion at the Appellate Division, Mr. Justice O‘Brien, referring to the argument that a judgment against the United States Mortgage & Trust Company, as trustee, would not be binding upon it individually, declares that this proposition is not determinative of the question, and says: ‘It is that very fact which makes the amendment necessary, but the result of the amendment was not to bring in a new party. What is controlling in each case is whether or not a new party—that is, a new person or corporation—is, by the amendment, made a defendant. Here the mortgage company was served originally and nothing was gained in having it before the court by the new service, but for the proper entry of the judgment against it the designation was upon motion changed by striking out the words “as substituted trustee,” etc. It follows that, as it was not subsequently brought in, the statute of limitations would not constitute a bar to the maintenance of the action against it.’ Boyd v. United States Mortgage & T. Co., 94 App. Div. 413, 417, 88 N. Y. Supp. 289.” 187 N. Y. at page 269, 79 N. E. at page 1001.
“The question which has given rise to such a difference of opinion in the court below is one of considerable practical importance to the legal profession, and I have, therefore, sought light upon it by the examination of a large number of cases, both English and American, to which no reference has been made either in the briefs or arguments of counsel. As a result of this research, and after a careful consideration of the reasoning in support of the contending views, I am satisfied that the amendment allowed in the case at bar does not really bring in a new party in the sense of making one a defendant who was not in any sense a defendant before the process and pleading were amended. It merely changes the capacity in which the same person is sought to be charged. That person having actually been brought into court by the service of the original process, there seems to be no reason why he should not be required to contest upon the merits any cause of action growing out of the facts alleged in the complaint which the plaintiff may have against him in one capacity rather than in another, provided that he is notified by a timely and proper amendment of the precise capacity in which the plaintiff seeks to hold him liable.” (Emphasis added.) 187 N. Y. at page 270, 79 N. E. at page 1001.
The obvious purpose of
Opinion delivered January 18, 1950.
ON REHEARING.
MR. JUSTICE HART delivered the opinion of the Court.
In his motion for rehearing, respondent for the first time contends that this is a case under the Federal Employers’ Liability Act and is governed by the provisions of the limitations section of that Act,
As we stated in our original opinion, the petitioner pleaded that the respondent was operating the railroad in interstate and foreign commerce, but petitioner failed to allege that he was injured while he was employed by the respondent in such commerce. Petitioner‘s specific allegations were that he and the rest of his crew were operating a switch engine “engaged in the transportation, switching and handling of freight cars and passengers in and around the City of Corpus Christi, Nueces County, Texas.” With the pleadings in this condition we concluded that the petitioner had failed to allege a case coming within the Federal Employers’ Liability Act.
Respondent cites Kach v. Monessen Southwestern Ry. Co., 3 Cir., 151 Fed. (2d) 400; Atlantic Coast Line R. R. v. Meeks, 30 Tenn. App., 520, 208 S. W. (2d) 355; Trucco v. Erie R. Co., 353 Pa. 320, 45 Atl. (2d) 20; and Maxie v. Gulf, M. & O. R. Co., 356 Mo. 633, 202 S. W. (2d) 904, to sustain his contention that the petitioner‘s pleadings bring the case within the Federal Employers’ Liability Act, as amended in 1939. While it is true that these cases hold that the 1939 amendment eliminated the necessity of showing that at the very time of the injury the employee was engaged in interstate commerce, still they recognize that the employee must, as the Act provides, show that his duties at least in part are the furtherance of interstate or foreign commerce or that they affect such commerce directly or closely and substantially. We do not think that the petitioner‘s pleadings meet this requirement, although we are somewhat in doubt as to the effect of the 1939 amendment to the Federal
It is possible that it will be held, as respondent contends, the law to be, that practically every employee of a railroad handling interstate business is within the terms of the amended Act. If so, and if pleadings such as those of the petitioner in this case are held to bring the case within the Federal Employers’ Liability Act, then we are of the opinion that the petitioner‘s action would not be barred by the limitations provision of that Act. As this court stated in Pope v. Kansas City, M. O. Ry. Co. of Texas, 109 Texas 311, 320, 207 S. W. 514, 517, “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 from the bar of limitation.” Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355; Seaboard Air Line Ry. v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006. This court is of course bound to follow the construction of the Act by the Supreme Court of the United States. While the precise question here presented has apparently not been decided by that court, we think that it follows from decisions in analagous cases that the amendment of the petitioner‘s pleading changing the capacity in which the respondent is sued would not let in limitations under the Federal Act. Missouri, K. & T. Ry. Co. v. Wulf, supra; Seaboard Air Line Ry. v. Renn, supra; 54 C. J. S. Limitations of Actions, sec. 275.
The respondent‘s motion for rehearing is overruled
Opinion delivered February 15, 1950.
JAMES P. HART
JUSTICE