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

• Decision Date: 10 May 1894
• Citation: 26 S.W. 985
• Parties: GULF, C. & S. F. RY. CO. v. ELLIS.
• Court: Texas Supreme Court

26 S.W. 985

GULF, C. & S. F. RY. CO. v. ELLIS.

Supreme Court of Texas.

May 10, 1894.

Error from court of civil appeals of third supreme judicial district.

Action by W. H. Ellis, by next friend, against the Gulf, Colorado & Santa Fe Railway Company. A judgment for plaintiff was affirmed on appeal to the court of civil appeals (21 S. W. 933), and defendant brings error. Affirmed.

J. W. Terry, for plaintiff in error.

BROWN, J.

This is a suit instituted by the appellee, W. H. Ellis, by next friend, H. W. Ellis, against the appellant, in the justice court of precinct No. 1, Lampasas county, Tex., wherein, by an amended account, filed October 9, 1890, the plaintiff charges, in substance, that on or about the 12th day of August, 1890, the appellant, by its engines and cars, killed a certain colt, the property of the appellee, of the value of $50. He further charges that he presented his claim, verified by affidavit, to the defendant's station master nearest the place where the colt was killed, according to the provisions of the act of 1889, and that the amount was not paid at the expiration of 30 days after the presentation of the claim; wherefore plaintiff claims $10 additional as attorney's fees, as provided by said act of the legislature. The appellant filed an answer, by which it, in substance, admitted the allegations in plaintiff's account, but denied that it was liable for attorney's fees, and moved the court to strike out plaintiff's claim for the same. There was a judgment in the justice court for the sum of $50, with interest and attorney's fees, from which appellant prosecuted an appeal to the district court of Lampasas county. At the November term of the district court the same judgment was rendered in favor of the appellee, from which judgment the appellant prosecuted the appeal to this court. The defendant, in open court, excepted to so much of the judgment as allowed $10 attorney's fees, and in open court gave notice of appeal to the supreme court of the state of Texas. The judgment of the district court was affirmed by the court of civil appeals (21 S. W. 933), from which this writ of error is prosecuted.

Plaintiff in error presents to this court the single question of the validity of the following act of the legislature, approved April 5, 1889:

"An act to regulate the presentation and collection of personal services or labor, or for damages, or for overcharge on freight against railway corporations doing business in this state in cases where the amount claimed does not exceed $50 and to fix the measure of damages recoverable in certain of such cases. Section 1. Be it enacted by the legislature of the state of Texas: That after the time that this act shall take effect any person in this state having a valid bona fide claim for personal services rendered or labor done, or for damages, or for overcharges on freight or claims for stock killed or injured by the train of any railway company, provided that such claim for stock killed or injured shall be presented to the agent of the company nearest to the point where such stock was killed or injured, against any railway corporation operating a railroad in this state, and the amount of such claim does not exceed $50, may present the same, verified by his affidavit, for payment to such corporation by filing it with any station agent of such corporation in any county where suit may be instituted for the same, and if, at the expiration of thirty days after such presentation, such claim has not been paid or satisfied, he may immediately institute suit thereon in the proper court, and if he shall finally establish his claim and obtain judgment for the full amount thereof, as presented for payment to such corporation in such court, or any court to which suit may have been appealed, he shall be entitled to recover the amount of such claim and all costs of suit, and in addition thereto all reasonable attorney's fees, provided he has an attorney employed in his case, not to exceed $10, to be assessed and awarded by the court or jury trying the issue."

This act is assailed as being in violation of the first section of the fourteenth amendment to the constitution of the United States, because it denies to the railroad companies the equal protection of the laws, and...