Hines v. Kelly

Court of Appeals of Texas

Hines v. Kelly

222 S.W. 648, 1920 Tex. App. LEXIS 655

CourtCourt of Appeals of Texas

DecidedMay 13, 1920

DocketNo. 2283.

StatusPublished

This text of 222 S.W. 648 (Hines v. Kelly) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hines v. Kelly, 222 S.W. 648, 1920 Tex. App. LEXIS 655 (Tex. Ct. App. 1920).

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Opinion

HODGES, J.

The appellee sued the Director General, Walker D. Hines, and Pearl Wight, receiver of the Texas & Pacific Railway Company, for damages resulting from injuries received by him while an employe in the railway service. The injury was caused by á collision between a motorcar and a handcar on which the appellee was riding. He was caused to fall backward and sustain injuries to his shoulders, back, neck, and other portions of the body. Appellee recovered a judgment against the appellants for the sum of $5,000.

[1] The facts show that the appellee was injured in April, 1919, at Reisor, in the State of Louisiana, and that he resided at Reisor *649 at the time of the injury. The suit was filed in the district court of Harrison county, Tex. The appellants presented in the trial court a motion to dismiss the suit because of the facts above stated. They offered in evidence, and here refer to, general orders No. 18 and No. 18a, issued by the Director General of Railroads in 1918. The latter contains the following requirement:

“It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose.”

The court overruled the motion, and the case was tried upon its merits. No effort was made by the appellants to continue or postpone the trial, nor is theie anything in the record to indicate that all of the witnesses needed did not appear and testify. In the case of El Paso & S. W. Ry. Co. v. Lovick, 218 S. W. 489, our Supreme Court held that so much of the orders of the Director General as undertook to fix the venue of suits of this character was invalid. That decision supports the action of the trial court in overruling the motion to dismiss the case.

[2] No reversible error is shown in‘the action of the court in refusing to permit the appellants to read to the jury certain paragraphs of their answer. It is not contended that the jury were not permitted to read and consider all of appellants’ pleadings after their retirement; nor is it insisted that appellants were deprived of any particular defense by reason of the fiction of the court.

The judgment is affirmed.

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HODGES, J.

The appellee sued the Director General, Walker D. Hines, and Pearl Wight, receiver of the Texas & Pacific Railway Company, for damages resulting from injuries received by him while an employe in the railway service. The injury was caused by á collision between a motorcar and a handcar on which the appellee was riding. He was caused to fall backward and sustain injuries to his shoulders, back, neck, and other portions of the body. Appellee recovered a judgment against the appellants for the sum of $5,000.

[1] The facts show that the appellee was injured in April, 1919, at Reisor, in the State of Louisiana, and that he resided at Reisor *649 at the time of the injury. The suit was filed in the district court of Harrison county, Tex. The appellants presented in the trial court a motion to dismiss the suit because of the facts above stated. They offered in evidence, and here refer to, general orders No. 18 and No. 18a, issued by the Director General of Railroads in 1918. The latter contains the following requirement:

“It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose.”

The court overruled the motion, and the case was tried upon its merits. No effort was made by the appellants to continue or postpone the trial, nor is theie anything in the record to indicate that all of the witnesses needed did not appear and testify. In the case of El Paso & S. W. Ry. Co. v. Lovick, 218 S. W. 489, our Supreme Court held that so much of the orders of the Director General as undertook to fix the venue of suits of this character was invalid. That decision supports the action of the trial court in overruling the motion to dismiss the case.

[2] No reversible error is shown in‘the action of the court in refusing to permit the appellants to read to the jury certain paragraphs of their answer. It is not contended that the jury were not permitted to read and consider all of appellants’ pleadings after their retirement; nor is it insisted that appellants were deprived of any particular defense by reason of the fiction of the court.

The judgment is affirmed.

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