Andrews v. Rice

• Decision Date: 25 October 1917
• Docket Number: (No. 7318.)
• Citation: 198 S.W. 666
• Parties: ANDREWS v. RICE et al.
• Court: Texas Court of Appeals

198 S.W. 666

ANDREWS v. RICE et al.

(No. 7318.)

Court of Civil Appeals of Texas. Galveston.

October 25, 1917.

Rehearing Denied November 22, 1917.

Appeal from District Court, Brazoria County; Sam'l J. Styles, Judge.

Action by Mrs. Minnie H. Rice and others against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiffs, defendant appeals. Reformed and affirmed.

Gaines & Corbett, of Bay City, Claude Polland, of Houston, and E. H. Crenshaw, Jr., of Kingsville, for appellant. A. E. Masterson and A. R. Rucks, both of Angleton, for appellees.

LANE, J.

This suit was brought by Mrs. Minnie H. Rice, widow of F. S. Rice, deceased, for herself and as next friend for their minor children, Paul Rice and Winnifred Rice, joined by Effie May Rice, F. E. Rice, Hester Rice, and Abegail Rice, the adult children of F. S. Rice, deceased, and O. A. Rice, the father of F. S. Rice, deceased, against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, to recover damages in the sum of $30,000 for the death of said F. S. Rice, alleged to have been caused by the negligence of said receiver, his agents and servants.

Plaintiffs allege in substance that on the 30th day of November, 1913, F. S. Rice, husband, father, and son of the plaintiffs, respectively, was at the depot of said railway company to take passage on one of its trains; that he had purchased a ticket from the agent of said receiver as such passenger; that, when the train upon which he expected to take passage was approaching said depot, he went out upon the depot platform for the purpose of boarding said train, and that while he was standing on the platform the train came by and struck a certain truck used by said receiver for loading baggage, freight, and express, which had been carelessly and negligently left on said platform near the railroad track by the servants, agents, and employés of said receiver in charge of the depot and depot grounds; that the impact of said train coming in contact with said truck knocked the same against and upon F. S. Rice, knocking him down and injuring him, from the effect of which he died on the 2d day of December, 1913. Plaintiffs' petition was filed on the 25th day of January, 1915.

On the 24th day of February, 1915, defendant Frank Andrews, receiver, answered admitting that F. S. Rice purchased a ticket from his agent for the purpose of becoming a passenger on one of the trains of said railway company, and that while on the depot platform he was struck by the truck as alleged by plaintiffs, but denying that his agents, servants, or employés, as such, were careless or negligent in the use of said truck. He denies that F. S. Rice was fatally injured as alleged by plaintiffs. He also pleads contributory negligence on the part of F. S. Rice. He further says that the truck which struck F. S. Rice was the property of the Wells Fargo & Co. Express, which its local agent, N. M. Havens, used in its business at the town of Sweeny, and:

"That if the said F. S. Rice was struck by the truck as alleged by the plaintiffs, * * * and any injury was received by reason thereof, then that the liability, if any, for such injury, would rest upon the Wells Fargo & Co. Express, and not upon this defendant. This defendant further represents that by reason of the contract entered into by and between the St. Louis, Brownsville & Mexico Railway Company and the Wells Fargo & Co. Express, that if there is any liability on account of the alleged injuries to F. S. Rice, resulting in his death, that such liability rests upon the said Wells Fargo & Co. Express, as shown by the following paragraph of said contract: `The railway company hereby grants to the express company the right to employ its agents and servants, as the agents of the express company, provided the latter holds itself responsible for all acts of theirs connected with and relating to its own business; and the express company assumes all risk of damage to its property, and to property of others in its custody whilst in the cars or depots of the railway company, and shall save the said railway company harmless against any and all claims for damages to such property. The express company does further assume all risk and damage to its agents and employés while engaged in its business on any of the lines of the railway company.' That by reason of the fact that the truck which is alleged to have caused the injury to the said F. S. Rice, resulting in his death, was owned, used, and controlled by the said express company, if there was any negligence in the handling, using, or placing of said truck, so that the same came in contact with the train operated by this defendant, as receiver, and such negligence on the part of the Wells Fargo & Co. Express, if any, caused the injuries complained of, then, by reason of the contract hereinbefore set forth, and by reason of the facts alleged, the said Wells Fargo & Co. Express, and not this defendant, would be liable therefor. Wherefore, premises considered, this defendant prays that the said Wells Fargo & Co. Express be made a party defendant herein, and required to appear and answer herein, and to defend this cause, and that this defendant be dismissed therefrom with his costs, and, in the alternative, should the court hold that this defendant is liable for the alleged injuries to the said F. S. Rice, and judgment is rendered against this defendant therefor, then this defendant prays for judgment over against the said Wells Fargo & Co. Express, for the amount of the judgment therein rendered against this defendant, and all costs, and for all such other and further relief, both general and special, at law and in equity, to which he may of right be entitled."

On the 25th day of February, 1915, the Wells Fargo & Co. Express was made a party to the suit upon the application of said receiver, and citation was served upon N. M. Havens, who was the joint agent of Receiver Frank Andrews and the Wells Fargo & Co. (not the Wells Fargo & Co. Express) at Sweeny, where the accident in question occurred. The case was continued and set for trial at the next term of the court, on the 20th day of September, 1915. On the 7th day of September, 1915, Wells Fargo & Co. (not the company made party by order of the court) presented its petition to have the case transferred to the District Court of the United States for the Southern District of Texas, and accompanied the same with bond as required by law. On the 14th day of September, 1915, plaintiffs filed their protest to the removal of the case; said protest reading as follows:

"Now come the plaintiffs in the above numbered and entitled cause and move the court that the petition of Wells Fargo & Co. praying that this cause be transferred to the honorable District Court of the United States for the Southern District of Texas at Galveston, Tex., be denied, and in this behalf show to the court: That Wells Fargo & Co. is not a party to this suit, and therefore cannot legally ask that said cause be removed to the District Court of the United States for the Southern District of Texas, at Galveston, Tex. Wherefore, plaintiffs pray that the petition of Wells Fargo & Co., praying for removal of said cause be denied."

On the same day the Wells Fargo & Co. filed the following plea, to wit:

"And now comes Wells Fargo & Co., defendant in the above suit in the cross-action of the defendant Frank Andrews, as receiver of St. Louis, Brownsville & Mexico Railway, and files this supplemental petition to remove said cause to the District Court of the United States for the Southern District of Texas, at Galveston, and also as an answer to the motion this day filed by plaintiffs, and says that the correct name of this defendant is Wells Fargo & Co.; that this defendant Wells Fargo & Co., a corporation, is the real and true defendant in said cross-action of said defendant Frank Andrews, receiver, etc., and is the defendant in fact served with citation on said cross-action of said Frank Andrews, receiver, etc.; and that the name `Wells Fargo & Co. Express,' given to this defendant in said cross-action of said Frank Andrews, receiver, etc., is a misnomer of this defendant."

On the same day the court overruled the application for removal, and upon the request of Wells Fargo & Co. filed his reasons for denying the application for removal, as follows:

"Said petition for removal was refused by the court for the reason that upon a hearing of said petition it appears to the court that said Wells Fargo & Co., is not a party to this suit, that the record does not prove that Wells Fargo & Co. is a party to this suit, and that there is no proper pleadings in this case filed within the time and in the manner required by law pleading that Wells Fargo & Co., and Wells Fargo & Co. Express are one and the same corporation, and no proof was offered on the hearing of said petition that Wells Fargo & Co. and Wells Fargo & Co. Express are one and the same corporation, or that Wells Fargo & Co. has been impleaded, or had been served, or was a party to this cause; and, for the further reason, that it appears to the court that no party to this cause has filed a petition and bond praying for the removal of this cause as is required by law."

On the 20th day of September, 1915, the court, upon the application of Wells Fargo & Co., quashed the citation served on its agent and dismissed said company from the suit upon the theory that it had never been made a party to the suit and was in fact not a party thereto.

At the January term of the trial court for 1916, and on the 31st day of said month, defendant Frank Andrews, receiver, filed his amended answer and therein denied all allegations of plaintiffs charging that F. S. Rice was injured through the negligence of him or any of his agents or servants, and pleaded contributory negligence. He also made practically the same allegations as to the...