Geer v. St. Louis, S. F. & T. Ry. Co.

• Decision Date: 09 May 1917
• Docket Number: (No. 2490.)
• Citation: 194 S.W. 939
• Parties: GEER v. ST. LOUIS, S. F. & T. RY. CO.
• Court: Texas Supreme Court

194 S.W. 939

GEER v. ST. LOUIS, S. F. & T. RY. CO.

(No. 2490.)

Supreme Court of Texas.

May 9, 1917.

Error to Court of Civil Appeals, Fifth Supreme Judicial District.

Action by Angeline Geer against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals (149 S. W. 1178), where the judgment was affirmed in part and reversed and rendered in part, whereupon this court granted a writ of error. Affirmed.

J. C. Wall, of Austin, and Davis & Davis, of Gainesville, for plaintiff in error. Andrews, Ball & Streetman, of Houston, Head, Smith, Hare & Head, and McReynolds & Hay, all of Sherman, for defendant in error.

YANTIS, J.

A switchman named E. H. Geer, while in the employ of the St. Louis, San Francisco & Texas Railway Company, defendant in error, was injured on the night of August 5, 1910, in said railway company's yards in Sherman, Tex., while rendering services in its behalf. He died from the injuries on the following day.

Mrs. Angeline Geer, who was the mother of the deceased, and who is plaintiff in error herein, recovered damages in the district court of Grayson county, Tex. The questions presented arise upon the issue of whether or not the deceased was engaged in interstate commerce at the time he received the injuries from which he died. The Court of Civil Appeals for the Fifth District, in deciding the case on appeal to it from the district court, held that the deceased was engaged in interstate commerce at the time of his injuries, and that the federal Employers' Liability Act of Congress, under the facts presented, control the determination of the case adversely to the plaintiff in error. (Civ. App.) 149 S. W. 1178. This court granted a writ of error upon the authority of Pedersen v. Delaware, Lack. & West. Ry. Co., 197 Fed. 537, 117 C. C. A. 33. Since that decision by the Circuit Court of Appeals was published, the United States Supreme Court has passed upon the case, and held adversely to the holding of the Circuit Court of Appeals, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

If at the time the deceased received the injuries he was employed for the railway company in interstate commerce, or in doing that which was so intimately connected with interstate commerce as to be practically a part of it, then the said act of Congress would control the disposition of the case. Upon the contrary, if he was not so engaged in interstate commerce, or in rendering a service connected therewith, and so closely related to interstate commerce as to be considered a part of the same, then the state law would control the question. The federal Employers' Liability Act does not authorize a recovery in behalf of a parent where the case is controlled by that act, where the deceased leaves a surviving widow, husband, or children, but only allows a recovery in behalf of the parents when the deceased leaves no surviving widow, husband, or children. The statute of this state provides in such a case for a recovery in behalf of the parents of the deceased, as well as in behalf of the surviving widow, husband, and children, and the next of kin in case there be no surviving widow, husband, children, mother, or father. It obviously follows that the plaintiff in error, being the mother of the deceased, would be denied a recovery if the case is controlled by the federal Employers' Liability Act. It is equally plain that she would be allowed a recovery if the case is controlled by the state law on the subject. It is necessary for us to determine which law should be applied.

It is well settled that the federal constitutional provision which authorizes Congress to regulate commerce between the states gives controlling effect to an act of Congress which has occupied the field to the exclusion of state laws, which also undertake to cover the same field. It is plain that Congress has occupied the field in relation to the rights of relatives to recover damages for the death of a railway employé who is engaged at the time of his death in interstate commerce, and the United States Supreme Court has construed the act and held it to apply to railway employés engaged in doing an act in aid of interstate commerce, and so closely related thereto as to be practically a part of it. Shanks v. Delaware, Lack. & West. Ry., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, and cases there cited. It is our duty to yield obedience to these decisions by the United States Supreme Court, and we have no inclination to do otherwise. The question, therefore, turns upon the issue of fact whether at the time the deceased was injured he was engaged in the service of the defendant in error in interstate commerce, or in work so closely related thereto as to be practically a part of it.

The evidence shows that when the deceased was injured he was working at night in the capacity of a switchman. At the time of his injury the crew with which he was working were engaged in switching three "bad order" cars onto the "repair track" situated in the yards, for the purpose of having the cars repaired. The deceased had been instructed by his foreman, W. L. Pelly, to mount one of the cars that was to be carried onto the "repair track" for the purpose of riding the same into the switch, in order that he might set the brakes and stop the cars at proper places on the "repair track." The cars were struck by the engine, but they did not receive sufficient momentum to carry them as far on the "repair track" as desired, and in order to accelerate their speed, they were again struck by the engine in order to cause them to reach the desired destination. The second stroke of the engine threw deceased from the top of the car down on the track, where he was run over and received the injuries that caused his death the following day. The cars with which the deceased was working at the time of the accident, and which were being carried to the "repair track" to be repaired, were two box...