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

• Citation: 93 S.W. 201
• Court: Court of Appeals of Texas
• Decision Date: 10 February 1906
• Parties: COOPER v. GULF, C. & S. F. RY. CO.<SMALL><SUP>*</SUP></SMALL>

93 S.W. 201

COOPER v. GULF, C. & S. F. RY. CO.^*

Court of Civil Appeals of Texas.

February 10, 1906.

Rehearing Denied February 17, 1906.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by the Gulf, Colorado & Santa Fé Railway Company against C. H. Cooper, as administrator of the estate of Fred P. Bishop, deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

K. R. Craig, for appellant. J. W. Terry and Alexander & Thompson, for appellee.

TALBOT, J.

Appellant, Cooper, on the 27th day of December, 1905, filed in the county court of Dallas county, Tex., an application asking that he be appointed administrator of the estate of Fred P. Bishop, deceased. Said application, omitting formal parts, is as follows: "C. H. Cooper shows to the court that on, to wit, the 12th day of February, 1904, Fred P. Bishop, a resident of Oklahoma Territory, departed this life intestate, leaving surviving him a wife, Jennie W. Bishop, and two minor children, Josiah Brooks Bishop and Sarah May Bishop, who reside in Oklahoma Territory. He further shows that there is in this state a claim for unliquidated damages for personal injuries causing the death of said Fred P. Bishop against the Gulf, Colorado & Santa Fé Railway Company and the Atchison. Topeka & Santa Fé Railway Company, both of which roads had an agency in Dallas county, Tex., arising under the law in force by virtue of an act of Congress of the United States in force in the Indian Territory, where said injuries were inflicted, recoverable by the administrator for the use and benefit of the widow and minor children, aforesaid; that for the purpose of instituting and prosecuting a suit for the recovery of said damages in this state it is necessary that an administrator of said estate be appointed by this court. Your applicant further shows that it is necessary for the purpose of securing and preserving testimony to support said claim that a temporary administrator be appointed, pending this application for permanent administration. Your applicant further shows that there is no person resident in Texas of any of the classes named by the statute as having the preference right of administration, that he is not disqualified from acting as such administrator, and he prays upon proper notice that he be appointed." On April 14, 1905, appellant was appointed permanent administrator of said Bishop's estate, and on the next day qualified as such by giving bond as prescribed by law.

On the 19th day of July, 1905, appellee, railway company, instituted this suit by filing its petition in said county court of Dallas county, praying that said administration and all acts done in pursuance thereof be vacated, and said administrator be discharged. Appellee alleged that it was interested in the matter, for that, as shown by the application of appellant, Cooper, for letters of administration on said estate, it is one of the railroad companies against whom the deceased's estate is said to have a claim for unliquidated damages on account of alleged personal injuries resulting in his death, and suit had been instituted against it for the recovery of such damages in the Circuit Court of the United States for the Southern District of Texas, at Galveston, by the administrator of said estate; that the county court of Dallas county, Tex., was without jurisdiction to grant letters of administration upon said estate, and the order granting such administration was null and void, because it appears from the application for letters of administration filed; that the deceased was at the time of his death a resident of Oklahoma Territory, and that his surviving wife and children resided there; that it does not appear from said application that deceased died in Dallas county, Tex., nor does it appear that he ever had, or that his estate now has, any property in Dallas county, Tex.; that said administration was sought, not for the best interest of the estate, but for the sole purpose of suing upon said claim in Dallas county, Tex., or to confer jurisdiction on the Circuit Court of the United States for the Southern District of Texas, at Galveston, over the person of appellee; that no fact existed which would clothe the county court of Dallas county, or any other county, in the state of Texas, with the right to entertain jurisdiction for the granting of letters of administration on said Bishop's estate. On July 24, 1905, the county court denied appellee's application and prayer for the abatement of said administration, and entered its judgment to that effect, from which judgment the appellee railway company appealed to the district court of Dallas county. When the case reached the district court, Cooper, the administrator, filed demurrers to the petition of the railway company and a motion to dismiss its appeal. These demurrers and motion are to the same effect, and challenge the legal sufficiency of appellee's petition to authorize it to maintain this suit, on the ground that the facts alleged show in substance that appellee is not an heir creditor nor distributee of the estate of Fred P. Bishop; that its sole relation to said estate consists in its being defendant in a suit brought by the administrator of said estate to recover damages for the death of said Bishop, occasioned by its wrongful act; and that such interest in said estate does not entitle it to interfere in the administration thereof. The demurrers were overruled, but the motion to dismiss the appeal was not directly passed upon. A trial in the district court on the merits of the case, without the intervention of a jury, resulted in a judgment revoking the appointment of appellant as administrator of said Bishop's estate and declaring all orders made in said administration null and void for want of jurisdiction, and adjudged costs against appellant. From this judgment appellant, Cooper, has appealed to this court.

There is no statement of facts in the record, but the trial court filed conclusions of fact, and such of them as are deemed material to the disposition of this appeal, are adopted by the court and are as follows:

Fred P. Bishop died about February 13, 1904, as the result of injuries inflicted upon him by the alleged wrongful act and negligence of the Gulf, Colorado & Santa Fé Railway Company and the Atchison, Topeka & Santa Fé Railway Company. His death occcurred about 24 hours after the receipt of the injuries, and during the greater part of the time he was conscious and suffered great pain. At the time of the death of Fred P. Bishop, he was a resident of Oklahoma Territory. He left surviving him a wife and two children, who then and now reside in Oklahoma Territory and left no kin in Texas. The injuries which caused the death of Fred P. Bishop were inflicted in the Indian Territory, and he died in Oklahoma Territory. The Gulf, Colorado & Santa Fé Railway Company is a railroad corporation chartered by the state of Texas, and its principal office is in Galveston county, Tex., which is in the Southern federal judicial district of Texas. The Atchison, Topeka & Santa Fé Railway Company is a railway corporation incorporated under the laws of the state of Kansas, and havings its principal office at Topeka, in Shawnee county, in said state. The laws in force in the Indian Territory at the time of the infliction of the injury on Fred P. Bishop were certain laws of the state of Arkansas as published in 1884, in the volume known as "Mansfield's Digest of the Laws of Arkansas," adopted and put in force for the government of the Indian Territory by an act of Congress of the United States of date May 2, 1890, which act is published in 26 Stat. 81, c. 182, among which laws are the following: Mansf. Dig. Tit. "Pleading and Practice," c. 119, § 5223: "For wrongs done to the person or property of another; an action may be maintained against the wrongdoers; and such action may be brought by the persons injured or after his death by his executor or administrator against such wrongdoers, or, after his death against his executor or administrator in the same manner and with like effect in all respects as actions founded on contracts." Under the same title and in the same chapter (section 5225, Mansf. Dig.) the following: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, company or corporation which, would have been liable if death had not ensued, shall be liable to action for damages, notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony." Section 5226 (same digest, title, and chapter), the following: "Every such action shall be brought by and in the name of the personal representative of such deceased person, and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person. And the amount recovered in every such action shall be for the exclusive benefit of the widow and the next in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person. Provided that every such action shall be commenced within two years after the death of such person."

Under the law so adopted and in force in the Indian Territory the widow would be entitled to one-third of whatever might be recovered under section 5225, and the children would be entitled to two-thirds thereof. Administration of the estate of Fred P. Bishop, deceased, was taken out in Oklahoma Territory...