Chicago, R. I. & G. Ry. Co. v. Cosio

• Decision Date: 05 January 1916
• Docket Number: (No. 887.)
• Citation: 182 S.W. 83
• Parties: CHICAGO, R. I. & G. RY. CO. v. COSIO.
• Court: Texas Court of Appeals

182 S.W. 83

CHICAGO, R. I. & G. RY. CO. v. COSIO.

(No. 887.)

Court of Civil Appeals of Texas. Amarillo.

January 5, 1916.

Rehearing Denied January 26, 1916.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Action by Flaviano Cosio against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E. Gustavus, of Amarillo, and N. H. Lassiter, of Ft. Worth, for appellant. L. C. Barrett and Jas. N. Browning, both of Amarillo, for appellee.

HUFF, C. J.

The appellee, Flaviano Cosio, brought this suit against the appellant railway company for damages for alleged personal injury. He alleges that the appellant railway company is a railroad corporation carrying passengers and freight for profit and hire over its line of road, which runs from Amarillo, Potter county, Tex., through Oldham county, Tex., to Tucumcari, N. M.; that the appellee was employed by appellant and engaged in building and repairing the defendant's road at and near a place called Vega, in Oldham county, and that appellant had motor cars for the purpose of carrying tools and material for repairing its road, which was required to be propelled along the road by the servants of appellant, and in propelling said car, and in carrying the tools and material, the appellee was engaged as the servant of appellant in such work at the time of his injury, and that, while so engaged, he attempted to mount the car, and was thrown therefrom and injured in the manner set out. The negligence alleged is that he was required to start the car by hand by pushing it for some distance until the motor by which the car was propelled was started, and that he was required to mount the car while in motion, and that he was so required by the direction of the foreman; that it at that time was loaded with certain tools, the handles of which were round, etc., and in getting on the car the tools turned so that his foot slipped and he fell. He also alleges that the track at that point was rough and uneven, and that the car struck a rough place and bounced as he stepped on the car, which contributed to the fall, and he also alleges that the appellant failed to warn him of the danger in getting on the car while in motion; that he was ignorant of the danger at the time and was wholly unacquainted with such work; that he was a Mexican, and not acquainted with the English language, and had had no experience in such matters; that all of said acts were negligence on the part of appellant and proximately caused his injury.

It will not be necessary at this time to set out the answer of the appellant. The case was tried to a jury on special issues, and upon their findings a judgment was rendered for appellee for $750.

Under the first assignment, the contention is made that defendant's plea in abatement should have been sustained or L. C. Barrett should have been made a party. The plea in abatement set up that prior to the filing of the suit appellee conveyed to L. C. Barrett an undivided one-half interest in the cause of action, and that Barrett is therefore a necessary party plaintiff, and that the cause should be abated, unless Barrett was made a party plaintiff. The appellee filed a pauper's oath, and it was admitted on the trial below that Barrett was able to pay and secure the costs. L. C. Barrett, as attorney for appellee, filed this suit against appellant in the name of appellee for the damages alleged, and the record shows Barrett represented appellee as his attorney in the trial court, and that he is representing appellee in this court in such capacity. The bills of exception taken on this plea show that the original petition was filed August 21, 1914; that the transfer set up by the plea was filed with the papers of the cause on the above date. The transfer recites that appellee, on the date thereof, August 17, 1914, employed L. C. Barrett to represent him and to sue appellant for the injury negligently inflicted on appellee, and to compensate Barrett for his services in such suit he assigned and transferred one-half interest in the cause of action, as well as all moneys realized by compromise or otherwise; that it was understood that all proceedings in court or out of court should be carried on in the name of appellee. The appellee empowered Barrett to bring the suit and prosecute it to final determination, collect all moneys arising therefrom, to compromise, and sign all papers and receipts for all moneys, and, when collected, to pay over one-half to appellee. Appellee was to stand for all costs or make necessary arrangements by affidavit, if required therefor. This transfer or power of attorney was duly acknowledged. It is apparent from the record that Barrett objected to being made a party plaintiff. The trial court refused to abate the suit or require Barrett to be made a party plaintiff. While the contract was made before suit was filed, the clear import thereof was an assignment of an interest in the funds to be collected in the future, and was contingent upon such collection. Railway Co. v. Ginther, 96 Tex. 295, 72 S. W. 166; Railway Co. v. Vaughn, 16 Tex. Civ. App. 403, 40 S. W. 1065; Railway Co. v. Wood, 152 S. W. 487.

It has been held that an attorney with a contingent interest in the subject-matter of a suit is not such as will make him a party to the suit requiring of him a bond for costs or to secure same. Railway Co. v. Scott, 28 S. W. 457. It has also been held by the Supreme Court that where an attorney had a contingent interest in the suit, who was the brother of the judge trying the case, the trial judge was not thereby disqualified, although such interest existed in the brother. Winston v. Masterson, 87 Tex. 200, 27 S. W. 768; Railway Co. v. Reeves, 35 Tex. Civ. App. 162, 79 S. W. 1099. Appellant cites the case of Hughes v. Mendoza, 156 S. W. 329. In that case it is held a one-third interest was transferred in the claim sued on, and that the attorneys could be made parties, and that the plea in abatement was properly presented. The court therein says:

"Undoubtedly the transfer in this case to Patterson & Wallace constituted them joint owners with plaintiff of the cause of action herein sued upon, rather than the owners of a contingent interest in a possible future recovery."

It was held, however, in that case, as the attorney represented the plaintiff therein, they would be bound by the judgment therein rendered, and that the action of the court in overruling the plea in abatement was harmless, citing Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835. We think the contract in this case, when considered in its entirety, evidenced the fact that Barrett had only a contingent interest in the future possible recovery, and that it is by its terms in the class with the contract mentioned in the case of Railway Company v. Ginther, supra. It was held in Wickizer v. Williams, 173 S. W. 288, where the plaintiff conveyed part of the land to the attorneys prosecuting the suit, that it was not error to refuse to make the attorneys parties to the suit over their objection, citing Bonner v. Green, supra. We think there was no error on the part of the trial court in refusing to make Barrett a party, but if there was error it was harmless for the reason under the showing in this record Barrett would be bound by the judgment rendered.

The second assignment complains at the action of the trial court in overruling the first special exception to appellee's petition, to the effect that appellee did not show whether he was suing under the state or federal law, and that appellant is not informed by the petition under what law appellee is claiming. The petition alleges that appellant operated a line of railroad from Amarillo, Tex., to Tucumcari, N. M., and through Oldham county, Tex., appellee's place of residence, and that the injury of which complaint is made was received by appellee while he was employed in repairing appellant's roadbed and track so used, and that it was his duty, as one of the employés of appellant, to operate a certain car along the line of road for the purpose of carrying appellant's servants, together with their tools and the material for repairing the road in which appellee was then employed as a servant of the appellant, and that he was injured while thus employed.

The appellant answered that it was engaged in interstate and intrastate commerce, and that the appellee was employed to assist in repairing and maintaining its roadbed and track when injured, and that, if he had any cause of action, it was under the federal Employers' Liability Act of the United States, and not of the state of Texas. The appellant in this case cites us to Thornton's Employers' Liability and Safety Appliance Acts, pp. 32 and 33. The author in the note suggests that, if the pleadings do not show the plaintiff was employed in interstate commerce, when the evidence developed the fact that he was, this would constitute a fatal variance, and, if the defendant by answer should set up the plaintiff was so employed, and this was proven, this would defeat a recovery, etc. The Supreme Court of the United States held:

"It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress, but the court was presumed to be cognizant of the enactment of the Employers' Liability Act, and to know that, with respect to the responsibility of interstate carriers by railroad to their employés injured in such commerce after its enactment, it had the effect of superseding state laws upon the subject. Second Employers' Liability Cases; Mondou v. N. Y., N. H. & H. R. Co. 32 Sup. Ct. 169 [56 L. Ed. 327, 38 L. R. A. (N. S.) 44]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done." Railway Co. v....