Davis v. Preston

• Citation: 264 S.W. 331
• Decision Date: 15 May 1924
• Docket Number: (No. 1112.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: DAVIS, Agent, v. PRESTON.
• Court: Texas Court of Appeals

Page 331

264 S.W. 331

DAVIS, Agent, v. PRESTON.

(No. 1112.)^*

Court of Civil Appeals of Texas. Beaumont.

May 15, 1924.

Rehearing Denied May 28, 1924.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by Mrs. Mary Preston, for whom Mrs. Mary Preston, as administratrix, was substituted, against Walker D. Hines, Director General of Railroads, for whom James C. Davis, as Agent, was substituted. Judgment for plaintiff, and defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

McDonald & Wayman, of Galveston, and Cole & Cole, of Houston, for appellee.

WALKER, J.

This suit was instituted on the 27th day of February, A. D. 1920, by appellee, in her individual capacity, against Walker D. Hines, Director General of Railroads, to recover damages for the death of her husband, which occurred on or about September 15, 1919, occasioned, on her allegations, by the negligence of the defendant in leaving certain steel rails in his switchyard. On the 31st day of May, 1922, in her individual capacity as plaintiff in this case, she filed and presented a motion to substitute James C. Davis, Federal Agent, as defendant, in lieu of Walker D. Hines, Director General. When the suit was filed, citation duly issued to and was served on the Director General in the manner provided by law. While permission had been granted to substitute James C. Davis, as Federal Agent, no pleading was filed against him as such until November 27, 1922, on the eve of the trial of this case. Her petition, filed on that date, was in her individual right, and predicated the damages claimed upon substantially the same allegations as contained in the original petition filed against the Director General.

On November 28, 1922, after the evidence was all in, the plaintiff presented a motion requesting the court to permit her to file a trial amendment for the purpose of appearing as administratrix of the estate of her deceased husband, W. P. Preston, which permission being granted, the amendment was filed, and the suit proceeded to final judgment in her favor, as such administratrix, against James C. Davis, as Federal Agent. This was her first appearance as administratrix in the case.

It was provided by Congress that federal control of railroads should terminate as of date March 1, 1920. This act provided that suits pending against the Director General at the termination of federal control should not abate, "but may be prosecuted to final judgment, substituting the Agent designated by the President under subdivision (a)." Transportation Act 1920, § 206, subd. (d), being U. S. Comp. St. Ann. Supp. 1923, § 10071¼cc, subd. (d). Section 1594, U. S. Comp. St. provides that such substitutions as provided for in the quoted section of the Transportation Act must be made within 12 months after the right accrues. Le Crone v. McAdoo, 253 U. S. 217, 219, 40 Sup. Ct. 510, 64 L. Ed. 798. Because of this construction placed by the Supreme Court upon the Transportation Act, appellant now insists that the court erred in permitting appellee to substitute the Federal Agent as defendant more than two years after the cessation of federal control. We think that this ruling of the court was justified by the Winslow Act (42 Stat. 1443), passed by Congress on the 3d day of March, 1923, as an amendment to the Transportation Act of 1920. The Winslow Act specially mentioned section 1594, and states that the purpose of the act was to relieve litigants of the provisions of section 1594, and further:

"Actions, suits, proceedings, and reparation claims, of the character described in subdivision (a), (c), or (d), properly commenced within the period of limitation prescribed, and pending at the time this subdivision takes effect, shall not abate by reason of the death, expiration of term of office, retirement, resignation, or removal from office of the Director General of Railroads or the Agent designated under subdivision (a), but may (despite the provisions of the act entitled `An act to prevent the abatement of certain actions,' approved February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of such final judgment, decree, or award the agent designated by the President then in office."

Appellee's cause of action comes within the provisions of this act. This provision of the Winslow Act has been directly construed as sustaining the trial court in his ruling substituting the Federal Agent for the Director General. In Cohen v. Davis (Mass.) 142 N. E. 75, it was said:

"As the cause of action in this case arose during federal control of the railroad, it is now settled that the action should have been brought against the government, and not against the railroad company. Missouri Pacific Railroad v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087; Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254, 132 N. E. 30. The contention of the defendant that the representative of the government cannot be made a party by substitution, in any case where the action originally was wrongly brought against the railroad company, is contrary to recent decisions of this court. Ætna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380; Genga v. Director General of Railroads, 243 Mass. 101, 110, 111, 137 N. E. 637; Director General of Railroads v. Eastern Steamship Lines, Inc., 245 Mass. 385, 139 N. E. 823.

"The defendant further contends that in no event can substitution be had later than two years after the end of government control. It is true that section 206 (a) of Transportation Act 1920 (41 Stat. at Large, 456 [U. S. Comp. St. Ann. Supp. 1923, § 10071¼cc]), provides that, after the termination of federal control, actions arising out of the operation of the railroad, while under such control, should be brought `within the periods of limitation now prescribed by state or federal statutes, but not later than two years from the date of the passage of this act.' But that subsection purports to deal only with the time within which actions may be commenced, where the cause thereof arose during federal control, and no action was brought during that period. In the case at bar, the action was begun January 9, 1920, almost two months before the termination of federal control. The subsection of the Transportation Act here applicable is 206 (d), which provides that such actions, `pending at the termination of federal control, shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President, under subdivision (a).' This subsection contains no time limitation. De Witt v. New York Central Railroad, 119 Misc. Rep. 456, 196 N. Y. Supp. 870; Henry v. New York Central Railroad, 204 App. Div. 491, 494, 198 N. Y. Supp. 542; Hanlon v. Davis, 276 Pa. 113, 118, 119 Atl. 822. Even if section 206 (a) were applicable, the Massachusetts law as to amendments does not regard such substitution as the commencement of a new action, and it would have been within the discretion of the trial court to allow the substitution, despite the fact that more than two years had elapsed since the termination of federal control. Ætna Mills v. Director General of Railroads, supra; Genga v. Director General of Railroads, supra; G. L. c. 231, § 138. In view of the Act of March 3, 1923 (42 Stat. 1443), amending Transportation Act 1920, § 206, we deem it unnecessary to consider the Act of Congress of February 8, 1899 (U. S. Comp. St. § 1594), limiting the time for substitution of a successor in office. See Sack v. Davis, 245 Mass. 114, 139 N. E. 819; Director General of Railroads v. Eastern Steamship Lines, Inc., supra. We are of opinion that the motion to dismiss was denied rightly." (Italics ours.)

Nor was appellee's cause of action barred by the two years' statute of limitation, because she instituted the suit in her individual capacity, and did not make herself plaintiff, in her representative capacity, until more than two years after the death of her husband. Bird v. Railway, 109 Tex. 323, 207 S. W. 518; Pope v. Railway, 109 Tex. 311, 207 S. W. 514. See, also, Railway Co. v. Kinney, 260 U. S. 340, 43 Sup. Ct. 122, 67 L. Ed. 294.

Appellee sought to establish the cause of her husband's death by circumstantial evidence, and predicated her cause of action upon the negligence of appellant in leaving steel rails on his yard. We take the following statement, of the nature and result of this suit, from appellee's brief:

"In the case at bar, the grounds of negligence alleged are: (a) Leaving the loose, rails in the switchyard where appellee would trip on them, (b) failure to provide a reasonably safe place in which to work, and (c) failure to warn deceased that the rails were where he would have to alight. The following is a summary of the material facts:

"A switching crew, of which W. P. Preston was longfieldman, on a rainy, stormy night was engaged in moving certain coaches from Union Station, in Houston, to a storage track, the end of which abutted on McKinney avenue. To reach the storage track, the coaches were moved from the station on the `outbound main line' track which ran in a southerly direction, where it crossed McKinney avenue. There were 5 tracks that cross McKinney avenue, and 4 that abut on the street. The 5 tracks that cross McKinney were on 14-foot centers, looking east from the outbound main. The inbound was next to the outbound main. This would make the inbound main on the left-hand side of the coaches, when crossing McKinney, going south. Looking west at McKinney from the outbound main, there was a rip or storage track at 50 feet, one at 16 feet from that, another at 13 feet from that, and another at 16 feet from that. These abutted on McKinney avenue. The coaches were to be put on one of these rip tracks abutting on McKinney. It was in the line of Preston's duty to get off the moving coaches at McKinney...