267 S.W. 1045 | Tex. App. | 1924
The court below overruled an exception to the amended petition, on the ground that the cause of action set up therein was a new and different cause of action from that set up in the original petition, and was barred by the statute of limitations of two and four years. The contention that the court erred when he ruled as stated presents the only question made on the appeal.
The contention ought to be sustained if appellee's original petition should be construed as appellant insists it should be, to wit, as basing appellee's right to the recovery it sought solely on "an express contract," whereby appellant "agreed and promised to reimburse appellee" the amount it "expended in settling with Mrs. Beam"; for, plainly, the cause of action set up in the amended petition was not based on the breach of such a contract. But to so construe the original petition would be to ignore the allegations in paragraph 6 thereof (set out in the statement above) to the effect that appellant was liable to appellee not only on such a contract, but also "by virtue of the contract of carriage existing" between them, "and also because of the negligence of the servants and employés" of appellant. We do not think those allegations should be disregarded, but, instead, think those in paragraph 5 of the original petition (also set out in said statement) should be, if the judgment can thereby be sustained.
Ignoring the allegations in said paragraph 5, and others pertinent alone to the agreement mentioned in said paragraph, and looking alone to the other allegations in the original petition, it would appear that appellee's cause of action was based on a "contract of carriage" between it and appellant, and on negligence of appellant's employés. Can it be said that the cause of action set up in the amended petition was not based upon the same "contract of carriage" and negligence of appellant's servants? *1047
We think the question must be answered in the negative. It was alleged in the amended petition, it will be noted, that appellant's sleeping car was a part of appellee's train by virtue of "an arrangement between them," which could have meant nothing else than by virtue of a "contract of carriage" between them; and it will be noted, further, that appellee charged in the amended petition that Mrs. Beam was injured as a result of negligence on the part of employés of appellant, in that they failed to perform duty appellant (presumably in the "arrangement" referred to) agreed they should perform.
The fact, if it was a fact, that the original petition, with paragraph 5 eliminated, would have been subject to a general demurrer on the ground that a cause of action in favor of appellee against appellant was not stated therein, would have been of no importance, we think, for the rule in this state is that the commencement of a suit by a party in whose favor a cause of action exists stays the running of the statute of limitations, notwithstanding the petition by which the suit is commenced is subject to a general demurrer on the ground stated. Tel. Co. v. Smith (Tex.Civ.App.)
The judgment is affirmed.
