Thate v. Texas & Pacific Railway Co.

595 S.W.2d 591
CourtCourt of Appeals of Texas
DecidedJanuary 23, 1980
Docket20104
StatusPublished
Cited by83 cases

This text of 595 S.W.2d 591 (Thate v. Texas & Pacific Railway Co.) 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.

Bluebook
Thate v. Texas & Pacific Railway Co., 595 S.W.2d 591 (Tex. Ct. App. 1980).

Opinion

ROBERTSON, Justice.

This is a suit for personal injuries sustained by Richard Thate, appellant, when, in order to avoid a falling stanchion which was used to stabilize trucks transported by the railroad, he jumped to the ground from a flatbed railroad car owned by appellee, Texas & Pacific Railway Company. Thate sought recovery on the following alternative theories: 1) strict liability under the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-43 (West 1972 & Supp.1979) and negligence, both pursuant to the Federal Employer’s Liability Act, 45 U.S.C.A. §§ 51-60 (West 1972); 2) common law negligence as to a third party, as provided in the Texas Workers’ Compensation Act, Tex.Rev.Civ. Stat.Ann. art. 8307, § 6a (Vernon Supp. 1980); and 3) strict liability in tort. The jury found the railroad liable under each theory, but also found Thate negligent on one ground. Accordingly, comparative negligence was assessed at 20% to Thate and 80% to the railroad. After reviewing each party’s motion for judgment, the trial court granted the railroad’s motion for judgment notwithstanding the verdict and rendered a take-nothing judgment against Thate. By his single point of error, Thate challenges that judgment. We hold that there was evidence of probative value supporting the jury’s verdict of common law negligence, and, therefore, that the trial court erred in granting judgment notwithstanding the verdict. Accordingly, we reverse and render.

On January 15,1975, Thate was employed by Texas & Pacific Motor Transport Company to load and unload trailers on flatbed railroad cars supplied by the railroad. The employees of Motor Transport, while attempting to load a trailer on a particular flatbed car, discovered that one of the stanchions would not lock in its proper position. Normally, when problems arose with the railroad cars, the practice was to contact the railroad to have the problem remedied. Following this practice, the railroad’s car repairman was called to repair the stanchion. A chain was used to pull the stanchion up to the proper position and when *595 the car repairman believed the stanchion had locked in that position, he advised Thate to remove the chain. When Thate complied, the stanchion fell and he was forced to jump off the car to avoid being hit. Thate’s injuries were allegedly incurred as a result of this occurrence.

In granting a judgment notwithstanding the verdict, a trial court must conclude that no evidence of probative value exists in support of the jury’s findings. Therefore, on appeal of such a judgment, a court of civil appeals considers only admissible evidence and inferences tending to support the verdict, and disregards all evidence and inferences to the contrary. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 649-50 (Tex.1977); McDonough Brothers, Inc. v. T. C. Bateson Construction Co., 575 S.W.2d 397, 398 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.).

Federal Employer’s Liability Act

Thate’s first ground for recovery was that the railroad was liable under the terms of the Federal Employer’s Liability Act, 45 U.S.C.A. §§ 51-60 (1972). The FELA is an exclusive remedy under which railroad employees can recover against their employer for on-the-job injuries resulting from the acts of their employer or other employees. Thate contends that he was entitled to sue under this act because he was a “borrowed servant” of the railroad at the time of the incident. The railroad argues that, as a matter of law, Thate was estopped from claiming he was their borrowed servant because he received benefits under the Texas Workers’ Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1980), on the representation that he was an employee of Motor Transport. After reading the cases cited by both parties, it appears that the only case directly addressing the question of whether receipt of state workers’ compensation benefits estops one from suing under FELA is Barrera v. Roscoe, Snyder & Pacific Railway, 385 F.Supp. 455 (N.D.Tex.1973), aff’d, 503 F.2d 1058 (5th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). Barrera prosecuted a claim under the Texas Workmen’s Compensation Act and received benefits. Later he filed an action claiming benefits under the FELA, conceding that he was an employee of RSP Railway Equipment Corporation, but contending that he came within the FELA because Equipment Corporation was the alter ego of RSP Railway. The court in Barrera concluded that there was no evidence to support the alter ego contention. Additionally, that court made the alternative holding that RSP Railway was entitled to judgment because Barrera was

estopped to assert a claim against the Railroad under the FELA by reason of his having successfully prosecuted a claim under the Texas Workmen’s Compensation Act on account of the injuries involved in this case. That remedy was inconsistent with a claim under the FELA because he had to be an employee of the Equipment Corporation to collect workmen’s compensation benefits.

Id. at 462. The railroad argues that this holding should control here. Thate argues that a fact issue exists in the present case concerning whether he was an employee of the railroad. As a result, he contends that Barrera can be distinguished from the instant case because Barrera specifically admitted he was the employee of Equipment Corporation, thus precluding any issue of fact concerning whether Barrera was an employee of the railroad. We conclude that no fact issue exists in the instant case concerning whether Thate was an employee of the railroad because, by his election to represent himself as an employee of the trucking company for purposes of receiving benefits under the Texas Workers’ Compensation Act, Thate is estopped from now claiming that he was an employee of the railroad for purposes of recovering under the FELA.

In addition to the federal court’s decision in Barrera, we find support for the estoppel theory in decisions of Texas state courts. The railroad does not indicate on which theory of estoppel it relies. Equitable estoppel requires a showing of detrimental reliance by the party asserting the *596 theory; no such reliance has been shown here. Judicial estoppel requires pleadings or statements made under oath; no showing has been made here that such statements were made by Thate. An additional type of estoppel, however, has been employed in Texas. See Metroflight, Inc. v. Shaffer, 581 S.W.2d 704 (Tex.Civ.App.—Dallas 1979, writ ref’d n. r. e.) (construing Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977)). In Metroflight this court concluded that Huckabee held that when a party has filed suit against one party and subsequently settled, and later filed suit against another party concerning a related transaction and seeking a remedy based on facts inconsistent with those alleged in the first suit, a species of judicial estoppel is effective to preclude the second suit.

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Bluebook (online)
595 S.W.2d 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thate-v-texas-pacific-railway-co-texapp-1980.