Magnolia Petroleum Co. v. Hamilton

251 S.W. 597, 1923 Tex. App. LEXIS 197

Opinion

WILLSON, O. J.

(after stating the facts as above). The petroleum company does not deny that the driver of the truck was guilty of negligence as shown in the findings of the jury, but insists, if he was and his negligence was a proximate cause of the collision, it nevertheless was not liable as determined by the judgment. The insistence is based on testimony showing it to be a common-law trust, joint-stock association or partnership that it was not a common carrier of goods or passengers, and that the truck was used by it for the purpose alone of conveying its own goods to its customers. It urges the fact that a cause of action for the death of Hamilton did not exist against it at common law, and asserts that it was not within the terms of the statute creating a cause of action for damages for the death of a person.

Prior to 1913, when an attempt was made to amend it by the act approved April 7, 1913 (Gen. Laws, p. 288 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4094]), entitled “An act to amend article 4694 of the Revised Civil Statutes of 1911, giving cause of action where injuries resulting in death is caused by the negligence of a corporation, its agents or servants, and declaring an emergency,” the statute was as follows:

“Art. 4694. An action for’actual damages, on account of injuries causing the death of any person may be brought in the following cases:

“1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer, of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers or other person or persons in charge or control of any railroad, their servants or agents, and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery, or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company.

“2. When the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another.”

The material change proposed in the amendatory act was the addition of the words “person or corporation, their agents or servants,” after the word “another” in the second clause of the statute so as to make the same read as follows:

“2. When the death of any person is caused by the wrongful act, neglect, unskillfulness or default of another person or corporation, their agents or servants.”

The petroleum company, though a common-law trust, joint-stock association or partnership, as asserted, was a “person,” and therefore liable for the conduct of its agents and servants, within the meaning of the second clause, set out above, of the amendatory act. It does not contend that it was not, but insists that the amendatory act was inoperative and void so far as it undertook to create a liability on the part of a person for the conduct of his agents or servants, because obnoxious to the provision in section 35 of article 3 of the Constitution that “no bill * * * shall contain more than one subject, which shall be expressed in its title.” A like contention was made in Rodgers v. Tobias, 225 S. W. 804, and was upheld by the Court of Civil Appeals for the First District. The Supreme Court refused to grant a writ of error in that case, and the holding was followed by the Court of Civil Appeals for the Eighth District in Anderson v. Smith, 231 S. W. 142, and by the Court of Civil Appeals for the Fourth District in Oberstone v. Armendariz, 244 S. W. 644, and was approved by this court in Schaff v. Merchant, 250 S. W. 465, decided April 11, 1923, and not yet (officially) reported.

Assuming, as we do, that the ruling in the Tobias Case was correct, if follows that if the petroleum company was liable for the damages recovered against it, it was only because the truck was a “vehicle for the conveyance of goods” within the meaning of those words as used in the first clause of the statute.

It was not disputed in the testimony that the truck was a “vehicle for the conveyance of goods” and that it was being used for that purpose at the time the collision occurred. The contention is that the vehicle referred to in the statute was one used by a common carrier in his business as such, whereas the truck in question was intended for use and was used for the purpose alone of conveying goods of the petroleum eom.pany to its customers. Several cases are cited by the petroleum company as supporting its view of the statute, and the opinions in some of ,them contain expressions which do support it. But "in none of the number, unless Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368, and Pulon v. Packing Co. (C. C.) 182 Fed. 356, are exceptions, was the court called upon to determine the question with reference to facts liké those in this case. In the Hanks Case an elevator used in a six-story office building to convey passengers was held not to be a vehicle within the meaning of the statute, and in the Pulon Case it was held on the authority of the Hanks Case, mainly, that a large wagon owned by the packing company was not such a vehicle. In the Hanks Case the Supreme Court, applying the rule known as the “ejusdem generis rule,” that “where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will be restricted by the particular designation in such statute,” concluded-that the phrase “or other vehicle for the conveyance of goods or passengers” should be construed as if it read, “or other like vehicles,” etc. After expressing ■doubt whether there was a passenger elevator in use in Texas in 1860, when the statute was enacted, the court said they thought it was meant “to apply to agencies and carriers transporting passengers and freight from some point of origin to some more or less distant point of destination. This is- of -necessity applied in every act of carriage of freight or passengers by either railroad, steamboat or stagecoach. In the nature of things, their engagements and works of transportation never contemplated a mere journey from one story of a building to another, and to us it seems dear that when the Legislature used the term ‘other vehicle’ it meant a vehicle performing, substantially at least, the same office and serving the same necessities.” Whatever force the reasoning of the court ha's when applied to an elevator, we think it has none when applied to an automobile truck like the one in question here. The truck was used by the petroleum company in carrying goods like a railroad, steamboat, and stagecoach carries them; that is, “from some point of origin to some more or less distant point of destination.” The truck in the usevmade of it, therefore, was a vehicle like a railroad, steamboat, and stagecoach, and, unlike an elevator, was not excluded as a “vehicle” within the meaning of the statute by the rule of ejusdem generis applied by the court in the Hanks Case. The Pulon Case was more like the instant one, but in that case it did not affirmatively appear, as it does in this one, that the vehicle was used to carry either goods or passengers. Sid Westheimer Co. v. Piner, 240 S. W. 985, was more like the instant case, and we think the Court of Civil Appeals there correctly determined the meaning of the statute to be to the contrary of the petroleum company’s contention. It appeared in that case that the plaintiff’s husband was killed on a public street in Houston by an automobile used by the defendant in its business as an undertaker. In affirming a judgment for the plaintiff the court said:

“Automobile ambulances and automobile seven-passenger touring cars are certainly vehicles, and the owners of such vehicles, when they are being operated for the conveyance of goods or passengers, are liable by the express terms of the statute for the death of any person caused by the negligence of the agent or servant of the owner in the operation of the vehicle. It is not necessary, in order to fix liability under [the first] subdivision of the statute, to allege or prove that the business of the owner of the vehicle was that of a public or common carrier. The purpose of the statute is broad, and it was not enacted for the protection only of passengers and shippers, but was manifestly designated to protect the public by giving a right of action for injuries resulting in death regardless of whether the deceased was a passenger or the owner of the vehicle was operating it as a eommon carrier, and it would largely defeat the manifest purpose of the statute if it should be construed to give a cause of action only against common carriers, and our courts have not so construed it. Cunningham v. Neal, 101 T. 338; Lodwick Lumber Co. v. Taylor, 39 Tex. Civ. App. 302, 87 S. W. 358; Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S. W. 179."

"The Supreme Court granted a writ of error in the Piner Case, on the ground as shown by its docket, appellee states in her brief, that it was in conflict with the Hanks Case, As we understand it, the ruling in the Hanks Case was not based on the view that the elevator was not a vehicle used by a common carrier, but on the view that it was not a vehicle in the use made of it like either a railroad, steamboat, or stagecoach, while the ruling in the Piner Case was based on the view that an automobile used to carry goods or passengers was a vehicle in the use made of it like a railroad, steamboat, or stagecoach. If the ground of the ruling in the Hanks Case was as stated, we feel sure tfiat when the Supreme Court reaches the Piner Case for further consideration, whatever may be their opinion as to the correct ness of the ruling'made in it, and made here, they wUl not find that ruling to he in conflict with the one made in the Hanks Case.

The main contentions made by the railway company are: First, that negligence on its part could not he predicated upon its permitting weeds and grass to be on its right of way; second, that if it could, and it was guilty of negligence in that respect, it nevertheless was not liable as determined by the judgment because it appeared that such negligence was not a proximate cause of the collision; and, third, that if it was guilty of negligence in the respect stated which was a proximate cause of the collision, appellee still was not entitled to recover against it because it appeared, it asserts, that the risk arising from such negligence was one Hamilton assumed.

We think the* contention first stated should be overruled (Eames v. Ry. Co., 63 Tex. 660), but are inclined _ to think it appeared from the testimony as a matter of law that the failure of the railway company to remove the weeds and grass from its right of way was not a proximate cause of the accident, and therefore that the second one of the contentions should -be sustained. Whether it should or not need not be determined, however, as we are of the opinion the third one of the contentions should be sustained, and appellee concedes that her right to recover against the railway company rests upon the federal statute, which, in a case like' this one is, leaves the defense of assumed risk as it exists at common law unimpaired.

At common law the servant assumed not only the ordinary risks of the service he undertook to perform, but also the risks resulting from the negligence of the master of which he knew and the danger of which he appreciated. 3 Labatt’s Master aná Servant, par. 1186a et seq.. Hamilton was 61 years of age.. It appeared without dispute in the testimony that he had been working for the railway company as an engineer for 21 years; that he had had charge of the operation of the motor car from Dallas to Sherman for,7 years; and that twice daily for the 20 consecutive days immediately preceding the day the collision occurred he operated the car from Dallas to Sherman and from Sherman back to Dallas, each time passing the point on the railway company’s line where the accident occurred. It was his duty to keep a lookout for persons approaching the crossing on the public road. If he discharged that duty, and we think it should be assumed that he did, it cannot be doubted that he knew weeds and grass were growing on the right of way as. shown by the testimony. ' If he knew that, it cannot be doubted, when his age and experience are kept in mind, that he appreciated the additional risk he incurred in operating the car over the crossing because of the existence, of the weeds and grass I on the right of way. Ry. Co. v. Hynson, 101 Tex. 543, 109 S. W. 929. Knowing of the railway company’s conduct in the respect stated, and appreciating the risk arising therefrom, he was within the applicable rule, and we see no escape from the conclusion that the railway company was not liable to appellee for the consequences of the collision.

The judgment will be affirmed so far as it is against the petroleum company. It wiil he reversed so far as it is against the railway company, and judgment will be here rendered that appellee take nothing by her suit against it.