Eastern Ry. Co. of New Mexico v. Ellis

153 S.W. 701, 1912 Tex. App. LEXIS 1387

• Court: Court of Appeals of Texas
• Decided: November 2, 1912
• Status: Published

Opinions

Appellee Mrs. Emma Ellis filed this suit in her own behalf, as the widow of W. H. Ellis and on behalf of Perry Ellis and wife, the parents of deceased, and as next friend of Dewey Ellis and Margaret Ellis, minor children, against the Eastern Railway Company of New Mexico, the Southern Kansas Railway Company of Texas, and the Atchison, Topeka Santa Fé Railway Company, defendants, alleging: That the line of railway on which W. H. Ellis, deceased, was working, was a continuous one from Clovis, N. M., through Oklahoma, to Kansas City and other Northern points, and that the operation of such line was sometimes designated under the names, as, on from New Mexico points to Amarillo by the "Eastern Railway Company of New Mexico," and from Amarillo to the state line of Oklahoma by the "Southern Kansas Railway Company of Texas," and from that point to Kansas City and Chicago by the "Atchison, Topeka Santa Fé Railway Company"; and it was alleged that the Atchison, Topeka Santa Fé Railway Company was the controlling company and the others subsidiary organizations, and that all used the same employés, and that no change or distinction of any character was observed, and that an entire harmony of action existed; that the employés, including said W. H. Ellis, were working on said line from points in New Mexico through Texas to Waynoka, Okla., wherever and whenever directed by the common and joint management, and the defendants had a common, and in fact constituted one, identity and were partners. In appellee's supplemental petition it was alleged that, if in fact there was no partnership existing between the defendants, the Eastern Railway Company of New Mexico and the Southern Kansas Railway Company of Texas were liable to her because W. H. Ellis, deceased, was employed by said companies at Amarillo, Tex., and furnished with the engine which exploded, and was sent by said companies in Oklahoma, and was under their orders and direction at the time of the accident. And by trial amendment, appellee more specifically alleged that defendants were jointly operating the line of railway and it owed deceased the duty of furnishing a safe engine for operation, which was not done in the employment of deceased at Amarillo, and that he had been sent into Oklahoma at the time of the accident. The negligence alleged was that the engine and boiler were old, worn, and defective and had not been properly and carefully inspected, and that the inspectors who pretended to inspect the engine were careless, inexperienced, and incompetent, and said engine at some prior time had been fired without water in the boiler, resulting in overheating and expanding the interior walls, bolts, and adjustments in the fire box, resulting in impairing and weakening the stays, bolts, bottoms, sides, crown sheets, and parts of the fire box, flues and other parts of the boiler, a more particular description of the defects, imperfections, and injured condition of said engine plaintiff was unable to give on account of not being familiar with the technical terms and construction of a locomotive engine, all of which defects, imperfections, and injuries to said engine were known to defendants, or could have been known by them by the exercise of ordinary care; that the explosion resulted solely from the worn, weakened, and defective condition; that if the explosion resulted from low water, ap pellants were negligent in the construction and equipment of the engine because not equipped with a fusible plug or other appliance in the fire box to protect it from becoming overheated and low water over the crown sheet; that a fusible plug or similar appliance would have automatically protected the boiler from overheating and low water and all causes which could result in an explosion; that the fire box was an old type considered unsafe and dangerous; that the fire box had been patched, rebuilt, and was defective and dangerous. Appellee, also in her first supplemental petition, pleaded that this suit is regulated by the Federal Employer's Liability Act of 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 [U.S.Comp.St.Supp. 1911, p. 1316]), as well as the act of 1909 of this state (Acts 31st Leg. [1st Ex. Sess.] c. 10).

Defendants, in their first amended original answer, upon which the case went to trial, answered by demurrer to the jurisdiction of the court, because the petition showed upon its face that the district court of Roberts county had no jurisdiction to hear and determine the case, and two special exceptions to the jurisdiction of the court to hear and determine the cause, and by special plea to the jurisdiction, and also in bar of plaintiff's cause of action, also by general demurrer to the petition and five special exceptions, general denial, plea of contributory negligence and of assumed risk, and thereafter further answered by their first supplemental answer, filed by way of replication to appellee's first supplemental petition, setting up by exception that "if the plaintiff's right of action is under the Federal Employer's Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U.S.Comp.St.Supp. 1911, p. 1322]), as stated by plaintiff in said so-called pleadings, then, under said act, as measured by all of plaintiff's pleadings, she cannot recover in this said suit because under said act the right of recovery is limited to the personal representative of the deceased, W. H. Ellis, and this suit, as shown by the pleadings, is not so prosecuted, and therefore under the law invoked plaintiff has no right of recovery," and prayed for judgment dismissing the action.

Appellants' demurrers and exceptions having been overruled, the case proceeded to trial before a jury, resulting in a verdict and judgment in favor of appellee and the minor children of deceased, against all the defendants, from which judgment appellants duly prosecute this appeal, and, upon errors assigned, ask that said cause be here reversed and rendered for appellants.

Under the view we take of this case, as presented by the record and briefs of counsel, we do not deem it necessary to consider consecutively the various assignments of appellants, many of which are devoted to the contention that appellee cannot recover or maintain her suit under the laws of Oklahoma, which contention is in our opinion foreign to the merits of this appeal. While appellee, in her supplemental petition, alleges that she has a right of action, both under the federal statutes of 1908 and of the statute of the state of Texas of 1909, we think that there can be no question as to the fact that her case, as shown by her pleading and admitted in her brief, is based upon and controlled by the federal statute of 1908, known as the Federal Employer's Liability Act. At common law, she would have no right of action for the injury complained of, and while both Texas and Oklahoma, by statute, provide for the survival of this character of cause of action and for maintenance of this character of suit, it is well settled, as conceded by both appellee and appellants, that the Federal Employer's Liability Act referred to supersedes such state legislation and is paramount and exclusive where it is shown, as in this case, that appellant, as a railway corporation, was engaged in interstate commerce at the time and place of the accident, resulting in the death of its employé, the deceased. This question is so well settled as to hardly require a citation of authorities. Mondou v. N.Y., N. H. H.R. Co., 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L., R. A. (N. S.) 44, decided January 15, 1912; Gutierrez v. E. P. N.W. R. Co., 102 Tex. 378, 117 S.W. 426; El Paso N.E. Ry. Co. v. Gutierrez, 215 U.S. 87, 30 Sup.Ct. 21, 54 L.Ed. 106; State v. T. N. O. Ry., 124 S.W. 984; State v. C., M. S. P. Ry.,136 Wis. 407, 117 N.W. 689, 19 L.R.A. (N. S.) 326; State v. Missouri Pacific Ry. Co., 212 Mo. 658, 111 S.W. 500.

Appellants, under their fourth assignment, contend that if plaintiff's cause of action was based upon the Federal Employer's Liability Act of 1908, as shown by the pleadings, the same is not maintainable thereunder, because said act specifically limits the right of recovery by suit to the personal representatives of the deceased, and that this suit, which shows upon its face to be brought under the act by the surviving relatives, is not maintainable and should be dismissed on demurrer, and that the court therefore erred in not sustaining appellants' second special exception, contained in their first supplemental answer to appellee's trial amendment and first supplemental petition.

Appellee, in reply to this contention, insists that the right of appellee to maintain this suit in the form and manner instituted can only be questioned in limine by a plea in abatement or by special exception filed and urged in due order of pleading before an answer to the merits, and that, appellants having filed their amended answer and pleaded to the merits of the suit, they thereby waived any objection to appellee suing as plaintiff at the time the supplemental answer was filed, and also further that appellee and her minor children, who recovered a judgment, were the real beneficiaries, and that a suit by a personal representative of W. H. Ellis, the deceased, would have inured to their use and benefit. We are of the opinion, in view of the holding of the Supreme Court of the United States, in the case of American Railroad Company of Porto Rico v. Birch, 224 U.S. 547, 32 Sup.Ct. 603, 56 L.Ed. 879, decided May 13, 1912, construing the federal statutes referred to, that appellee cannot, in the capacity in which she sues maintain this suit. In the case referred to, it was there contended that the widow and son of the deceased railway employé could maintain in their own names and personal capacity an action for damages, under the Federal Employer's Liability Act in question; the court in an opinion by Justice McKenna saying: "In the original complaint, defendant in error alleged that she was the widow of the deceased. To this a demurrer was filed, alleging as a ground that the complaint did not `state in what capacity' she sued. Thereupon an amendment was directed and made, as we have indicated. In the amended complaint she joined with her Ernest Victor Birch, alleging him to be the son and herself the widow of the deceased. By agreement of the parties, the demurrer to the original complaint was considered as a demurrer to the amended complaint, and as such it was overruled. The record shows that at the trial the plaintiffs presented, against the objection of the company, a certificate from the proper insular court, `in which It was certified that the plaintiffs in the action were the legal heirs of the deceased.' Subsequently the court, in passing on and overruling a motion of the company for direction of a verdict for it upon the ground that the suit was not `brought by any person authorized under the national employer's liability act to bring suit,' said `that the suit being brought under the act of Congress of April 22, 1908, it is properly brought in the name of the only persons for whose benefit any recovery could be had, and it is the opinion of the court that the words in section 2 of the act in question, "to his or her personal representative," cannot be construed to mean that it is necessary, in cases where only the husband or wife could inherit and are the only survivors, that they be forced, in the absence of any estate belonging to the deceased other than his right to sue, to have an administrator appointed.' But the words of the act will not yield to such liberal construction. They are too clear to be other than strictly followed. They give an action for damages to the person injured, or, `in case of his death, * * * to his or her personal representative.' It is true that the recovery of the damages is not for the benefit of the estate of the deceased, but for the benefit `of the surviving widow or husband and children.' But this distinction between the parties to sue and the parties to be benefited by the suit makes clear the purposes of Congress. To this purpose we must yield, even if we could say, as we cannot, that it is not a better provision than to give the cause of action to those in relation to the deceased. In the present case it looks like a useless circumlocution to require an administration upon the deceased's estate, but in many cases it might be much the simpler plan and keep the controversy free from elements but those which relate to the cause of action. But we may presume that all contending considerations were taken into account, and the purpose of Congress expressed in the language used. * * * The national act gives the right of action to personal representatives only."

Appellee, however, contends that while the act of Congress provides that the suit should be brought by a personal representative, yet the most that can be said for this provision is that it is a direction, a matter of procedure, and only a formality, and, such being the nature of the provision, when it is not observed in the filing of suit, then by analogy from all kindred legal questions, civil or criminal, timely objection must be made thereto and the party given an opportunity for correction, and that appellants, having failed to raise this question by formal plea in abatement, filed in due order of pleading, must be held to have waived the same. And in support of this contention we are especially cited, among other decisions, to the opinion of the Court of Civil Appeals, in the case of S. L. S. F. T. Ry. v. Seale, 148 S.W. 1099, and the opinion of the United States Circuit Court of Appeals, in the case of M., K. T. Ry. Co. v. Wulf, 192 F. 919, 113 C.C.A. 665. Both of these cases, however, we think are distinguishable on the facts from the case before us. In the Seale Case, Chief Justice Rainey, speaking for the court, says, on rehearing: "Appellant insists that the facts in this case bring it within the act of Congress, approved April 22, 1908, known as the Federal Employer's Liability Act, and the same is controlled by its provisions. As said by Mr. Chief Justice Brown, in the case of M., K. T. Ry. Co. v. Blalack (Sup.)147 S.W. 559, recently decided, `this court has never questioned that the Constitution of the United States and the laws enacted by Congress in the exercise of powers derived from that Constitution are superior to the laws of this, on the same subjects.' We are of the opinion, however, that the facts in this case do not bring it within the purview of the federal statute. The deceased was run over and killed by a switch engine, operated in the yards of appellant, in Sherman, Tex. He was working under T. A. Gribble, who was chief clerk out at those yards and in charge of the same. Deceased's work was done in connection with the clerk's in the yards and with the switch crew." He then proceeds to further set out the evidence, tending to show, and in support of the holding that the facts of that case do not bring it within the act of Congress; while in the case before us, both upon the facts and the admission of appellee in her pleading, there is no room for controversy as to the suit being based upon and controlled by the act of Congress, which we are of the opinion by its express terms, and as an essential part of the act, permits suit to be maintained thereunder, as held by the United States Supreme Court, in the Birch Case, supra, only by a "personal representative." And we are inclined to the opinion that this requirement is such essential part of the act that it cannot be waived by failure on the part of appellants to raise the question by formal plea in abatement, filed in due order of pleading, but that such objection to the capacity in which appellee sued could be raised, as was done by exception, at any time before a trial had on the merits and Judgment rendered. In the case of Holliman v. Rogers, 6 Tex. 97, Justice Lipscomb, speaking for the court, says: "Should it be said that a defect of parties can only be taken advantage of by plea in abatement, the answer is that the general rule that exceptions to parties should be taken advantage of by a plea in abatement, giving to the party a better writ, is subject to exceptions, and one of these exceptions is that a defendant may take advantage of such defect in a party plaintiff on the trial, if it should appear from the evidence, although not pleaded. Not so, however, as to a want of proper parties defendant. This the defendant must show by his plea and give the names of the parties that should have been joined with him." It is to be noted also that the Wulf Case, as well as the Seale Case, and other cases cited by appellee, in support of her contention of waiver, as hereinbefore set out, were not decisions rendered either by the Supreme Court of this state or of the United States, but by intermediate courts, and that these decisions were rendered before the decision of the Supreme Court of the United States in the case of the American R. R. Co. v. Birch, supra, construing the federal act in question.

We therefore conclude that, under the law and upon the record of this case, it clearly appears that appellee was not entitled to maintain her suit as brought, and, on her incapacity to maintain said action being brought to the attention of the court by the exception referred to under appellants' fourth assignment of error, that said exception should have been sustained, and it is ordered that the judgment appealed from be here reversed, and the cause remanded.

Reversed and remanded.