Smith v. Missouri Pac. Ry. Co.
Court of Appeals for the Eighth Circuit
In Error to the Circuit Court of the United States for the Western District of Missouri. At Law. Action by Kate Smith against the Missouri Pacific Railway Company to recover damages for the alleged wrongful death of her husband. A demurrer to the second count of the amended petition was sustained, (50 Fed. Rep. 760,) and, plaintiff declining to plead further, judgment was entered for defendant. Plaintiff brings error.
Read the full summary
In Error to the Circuit Court of the United States for the Western District of Missouri. At Law. Action by Kate Smith against the Missouri Pacific Railway Company to recover damages for the alleged wrongful death of her husband. A demurrer to the second count of the amended petition was sustained, (50 Fed. Rep. 760,) and, plaintiff declining to plead further, judgment was entered for defendant. Plaintiff brings error. Statement by THAYER, District Judge: The plaintiff in error brought an action against the defendant in error on the 24th day of May, 1882, in the United States circuit court for…
1Opinion of the Court
THAYER, District Judge,
(after stating the case.) Conceding that ihe second count of the amended petition proceeded upon the Theory that the plaintiff might recover by reason of the negligence of the engineer, Murray, even though the defendant company had not been guilty of culpable negligence in employing him, as was charged in the original petition and in the first count of the amended petition, still we think that the circuit court erred in holding ihat such, change in the pleading was not properly an amendment, but the statement of a new and distinct cause of action.
The cause of action…
2Cases cited5 opinions
- Scovill v. GlasnerSupreme Court of Missouri · 1883
- Lottman v. BarnettSupreme Court of Missouri · 1876
- Kuhns v. Wisconsin, Iowa & Nebraska Railway Co.Supreme Court of Iowa · 1888
- Buel v. St. Louis Transfer Co.Supreme Court of Missouri · 1870
- Gourley v. St. Louis & San Francisco Railway Co.Missouri Court of Appeals · 1889
3Cited by14 opinions
- Baltimore Steamship Co. v. PhillipsSupreme Court of the United States · 1927
- McDonald v. NebraskaCourt of Appeals for the Eighth Circuit · 1900
- Alabama Consolidated Coal & Iron Co. v. HealdSupreme Court of Alabama · 1908
- Hodges v. KimballCourt of Appeals for the Fourth Circuit · 1899
- Chobanian v. Washburn Wire CompanySupreme Court of Rhode Island · 1911
9 more not listed; retrieve them via the Exa API.