Belt v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 07 June 1893
• Citation: 22 S.W. 1062
• Parties: BELT v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

22 S.W. 1062

BELT v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas.

June 7, 1893.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by George W. Belt against the Gulf, Colorado & Sante Fe Railway Company for the death of Henry Belt, a fireman in defendant's employ. Special exceptions to the petition were sustained, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by HEAD, J.:

November 8, 1890, appellant filed in the district court of Johnson county his petition alleging his residence to be in the state of Missouri; that appellee is a railway corporation created under the laws of the state of Texas, its line extending into the Indian Territory; that all its general offices are situated in this state, and all its agents and train operatives are employed here, and all its trains are operated under orders issued by its principal officers in this state; that Henry Belt was employed as fireman upon one of its locomotives, such contract of employment being made in this state; that one ____ Pulley was employed as conductor, one Henry Moore as engineer, and one James Miller as brakeman, on another of appellee's trains, such contracts of employment having been made in this state; that on the 19th of August, 1890, said Henry Belt was killed by the gross negligence of said Miller, in leaving one of the switches on appellee's track open at Wynnewood, in the Indian Territory, whereby the engine upon which Belt was riding was there derailed, and he thereby received the injuries from which he died on the next day in the state of Texas. The petition also charges negligence on the part of appellee, in compelling its employes, including Miller, to labor an unreasonable time without rest or sleep, and assigns this as one of the reasons why Miller went to sleep on his post of duty, and neglected to close the switch at the proper time. Appellant is alleged to be the father and surviving parent of said Henry Belt, who was never married, and there is a general allegation that he is the only person surviving who had or has any interest in the life or services of said deceased. To this petition, appellee filed special exceptions as follows: "And, for special exceptions to plaintiff's petition, defendant says that the plaintiff avers and charges that the injury which was inflicted in and upon Henry Belt, and which caused his death, was inflicted in the Indian Territory, and beyond the limits of the state of Texas, and therefore, under the terms of plaintiff's petition, this court has no jurisdiction. (2) The averment is made in plaintiff's petition that the injury occurred beyond the limits of the state of Texas, and fails to aver that there was any law in force at the time said injury occurred, in the Indian Territory, giving damages to plaintiff on account of the injuries to Henry Belt, and, if there was such a law, what that law was, and to show that this court has jurisdiction to enforce the same. (3) The plaintiff avers that defendant failed to comply with its contract with Henry Belt, but does not aver whether said contract was in writing, or verbal, and fails to show that plaintiff has any right to sue defendant on account of a breach on its part of its contract with Henry Belt." These exceptions were sustained by the court below, and, appellant declining to amend, it was adjudged that he take nothing by his suit, and from this judgment this appeal is prosecuted.

Poindexter & Padelford and Henry & Green, for appellant. J. W. Terry, for appellee.

HEAD, J., (after stating the facts.)

We judicially know that on May 2, 1890, the congress of the United States enacted a law adopting certain sections of Mansfield's Digest of the Statutes of Arkansas as the law in force in the Indian Territory, among which was chapter 119, relating to pleading and practice. 1 Supp. Rev. St. U. S. (2d Ed.) pp. 733, 734. We must, therefore, also take judicial knowledge of the provisions of the statutes of Arkansas so adopted. Apollos v. Staniforth, 22 S. W. Rep. 1060, (this day decided by us,) citing Bayly's Adm'r v. Chubb, 16 Grat. 284; Bird v. Com., 21 Grat. 800; 1 Greenl. Ev. 490; 1 Whart. Ev. 287; 1 Rice, Ev. 32. In the chapter of the Arkansas statute adopted as above, under the subhead of "What Causes of Action Survive," an action for an injury resulting in death is clearly given. Mansf. Dig. Ark. §§ 5225, 5226. The provisions of the Arkansas statute relating to this question are set forth at length in the opinion in the case of Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. Rep. 540. We are of opinion that it was the intention of congress to adopt this portion of the Arkansas statutes as the law in the Indian Territory, and it was not intended to confine the act to such portions of this chapter as related to pleading and practice, when given a restricted construction. It had been previously provided by congress, when establishing a court for the Indian Territory,...