Eastern Ry. Co. of New Mexico v. Ellis

• Citation: 153 S.W. 701
• Parties: EASTERN RY. CO. OF NEW MEXICO et al. v. ELLIS et al.
• Decision Date: 02 November 1912
• Court: Texas Court of Appeals

153 S.W. 701

EASTERN RY. CO. OF NEW MEXICO et al. v. ELLIS et al.

Court of Civil Appeals of Texas. Amarillo.

November 2, 1912.

On Motion for Rehearing, February 22, 1913.

Modification of Opinion on Rehearing, February 24, 1913.

Appeal from District Court, Roberts County; F. P. Greever, Judge.

Action by Emma Ellis and others against the Eastern Railway Company of New Mexico and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

H. E. Hoover, of Canadian, J. C. Dial, of Miami, Chas. W. Swindall, of Woodward, Okl., and Terry, Cavin & Mills, of Galveston, for appellants. Gustavus & Jackson, of Amarillo, J. A. Holmes, of Miami, and W. F. Ramsey, of Austin, for appellees.

PRESLER, J.

Appellee Mrs. Emma Ellis filed this suit in her own behalf, as the widow of W. H. Ellis and on behalf of Perry Ellis and wife, the parents of deceased, and as next friend of Dewey Ellis and Margaret Ellis, minor children, against the Eastern Railway Company of New Mexico, the Southern Kansas Railway Company of Texas, and the Atchison, Topeka & Santa Fé Railway Company, defendants, alleging: That the line of railway on which W. H. Ellis, deceased, was working, was a continuous one from Clovis, N. M., through Oklahoma, to Kansas City and other Northern points, and that the operation of such line was sometimes designated under the names, as, on from New Mexico points to Amarillo by the "Eastern Railway Company of New Mexico," and from Amarillo to the state line of Oklahoma by the "Southern Kansas Railway Company of Texas," and from that point to Kansas City and Chicago by the "Atchison, Topeka & Santa Fé Railway Company"; and it was alleged that the Atchison, Topeka & Santa Fé Railway Company was the controlling company and the others subsidiary organizations, and that all used the same employés, and that no change or distinction of any character was observed, and that an entire harmony of action existed; that the employés, including said W. H. Ellis, were working on said line from points in New Mexico through Texas to Waynoka, Okl., wherever and whenever directed by the common and joint management, and the defendants had a common, and in fact constituted one, identity and were partners. In appellee's supplemental petition it was alleged that, if in fact there was no partnership existing between the defendants, the Eastern Railway Company of New Mexico and the Southern Kansas Railway Company of Texas were liable to her because W. H. Ellis, deceased, was employed by said companies at Amarillo, Tex., and furnished with the engine which exploded, and was sent by said companies in Oklahoma, and was under their orders and direction at the time of the accident. And by trial amendment, appellee more specifically alleged that defendants were jointly operating the line of railway and it owed deceased the duty of furnishing a safe engine for operation, which was not done in the employment of deceased at Amarillo, and that he had been sent into Oklahoma at the time of the accident. The negligence alleged was that the engine and boiler were old, worn, and defective and had not been properly and carefully inspected, and that the inspectors who pretended to inspect the engine were careless, inexperienced, and incompetent, and said engine at some prior time had been fired without water in the boiler, resulting in overheating and expanding the interior walls, bolts, and adjustments in the fire box, resulting in impairing and weakening the stays, bolts, bottoms, sides, crown sheets, and parts of the fire box, flues and other parts of the boiler, a more particular description of the defects, imperfections, and injured condition of said engine plaintiff was unable to give on account of not being familiar with the technical terms and construction of a locomotive engine, all of which defects, imperfections, and injuries to said engine were known to defendants, or could have been known by them by the exercise of ordinary care; that the explosion resulted solely from the worn, weakened, and defective condition; that if the explosion resulted from low water, appellants were negligent in the construction and equipment of the engine because not equipped with a fusible plug or other appliance in the fire box to protect it from becoming overheated and low water over the crown sheet; that a fusible plug or similar appliance would have automatically protected the boiler from overheating and low water and all causes which could result in an explosion; that the fire box was an old type considered unsafe and dangerous; that the fire box had been patched, rebuilt, and was defective and dangerous. Appellee, also in her first supplemental petition, pleaded that this suit is regulated by the Federal Employer's Liability Act of 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1911, p. 1316]), as well as the act of 1909 of this state (Acts 31st Leg. [1st Ex. Sess.] c. 10).

Defendants, in their first amended original answer, upon which the case went to trial, answered by demurrer to the jurisdiction of the court, because the petition showed upon its face that the district court of Roberts county had no jurisdiction to hear and determine the case, and two special exceptions to the jurisdiction of the court to hear and determine the cause, and by special plea to the jurisdiction, and also in bar of plaintiff's cause of action, also by general demurrer to the petition and five special exceptions, general denial, plea of contributory negligence and of assumed risk, and thereafter further answered by their first supplemental answer, filed by way of replication to appellee's first supplemental petition, setting up by exception that "if the plaintiff's right of action is under the Federal Employer's Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), as stated by plaintiff in said so-called pleadings, then, under said act, as measured by all of plaintiff's pleadings, she cannot recover in this said suit because under said act the right of recovery is limited to the personal representative of the deceased, W. H. Ellis, and this suit, as shown by the pleadings, is not so prosecuted, and therefore under the law invoked plaintiff has no right of recovery," and prayed for judgment dismissing the action.

Appellants' demurrers and exceptions having been overruled, the case proceeded to trial before a jury, resulting in a verdict and judgment in favor of appellee and the minor children of deceased, against all the defendants, from which judgment appellants duly prosecute this appeal, and, upon errors assigned, ask that said cause be here reversed and rendered for appellants.

Under the view we take of this case, as presented by the record and briefs of counsel, we do not deem it necessary to consider consecutively the various assignments of appellants, many of which are devoted to the contention that appellee cannot recover or maintain her suit under the laws of Oklahoma, which contention is in our opinion foreign to the merits of this appeal. While appellee, in her supplemental petition, alleges that she has a right of action, both under the federal statutes of 1908 and of the statute of the state of Texas of 1909, we think that there can be no question as to the fact that her case, as shown by her pleading and admitted in her brief, is based upon and controlled by the federal statute of 1908, known as the Federal Employer's Liability Act. At common law, she would have no right of action for the injury complained of, and while both Texas and Oklahoma, by statute, provide for the survival of this character of cause of action and for maintenance of this character of suit, it is well settled, as conceded by both appellee and appellants, that the Federal Employer's Liability Act referred to supersedes such state legislation and is paramount and exclusive where it is shown, as in this case, that appellant, as a railway corporation, was engaged in interstate commerce at the time and place of the accident, resulting in the death of its employé, the deceased. This question is so well settled as to hardly require a citation of authorities. Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, decided January 15, 1912; Gutierrez v. E. P. & N. W. R. Co., 102 Tex. 378, 117 S. W. 426; El Paso & N. E. Ry. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 L. Ed. 106; State v. T. & N. O. Ry., 124 S. W. 984; State v. C., M. & S. P. Ry., 136 Wis. 407, 117 N. W. 689, 19 L. R. A. (N. S.) 326; State v. Missouri Pacific Ry. Co., 212 Mo. 658, 111 S. W. 500.

Appellants, under their fourth assignment, contend that if plaintiff's cause of action was based upon the Federal Employer's Liability Act of 1908, as shown by the pleadings, the same is not maintainable thereunder, because said act specifically limits the right of recovery by suit to the personal representatives of the deceased, and that this suit, which shows upon its face to be brought under the act by the surviving relatives, is not maintainable and should be dismissed on demurrer, and that the court therefore erred in not sustaining appellants' second special exception, contained in their first supplemental answer to appellee's trial amendment and first supplemental petition.

Appellee, in reply to this contention, insists that the right of appellee to maintain this suit in the form and manner instituted can only be questioned in limine by a plea in abatement or by special exception filed and urged in due order of pleading before an answer to the merits, and that, appellants having filed their amended answer and pleaded to the merits of the suit, they thereby waived any objection to appellee suing as plaintiff at the time the supplemental answer was filed, and also further that appellee and her minor children, who recovered a judgment, were the real beneficiaries, and that a suit by a...