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

• Decision Date: 22 January 1913
• Citation: 153 S.W. 651
• Parties: GULF, C. & S. F. RY. CO. v. BEEZLEY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

153 S.W. 651

GULF, C. & S. F. RY. CO. v. BEEZLEY.^†

Court of Civil Appeals of Texas. Austin.

January 22, 1913.

Rehearing Denied February 12, 1913.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by Mrs. Lillie Beezley, as administratrix, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, and A. H. Culwell, of Dallas, for appellant. A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellee.

RICE, J.

Appellee, as administratrix, for the benefit of herself and her three minor children, brought this suit against appellant to recover damages on account of the death of her husband, Chas. Beezley, the father of said minors. It is alleged that he was killed at Lometa on August 18, 1911, while engaged in the employ of appellant as a freight brakeman on a train of cars, which he was undertaking to uncouple. The negligence alleged was the rough handling and violent jerking and jarring of said cars, whereby he was thrown underneath the wheels, run over, and killed. Appellant answered by plea in abatement, insisting that the plaintiff had no right to institute this suit as administratrix for the reason that the probate court of Bell county was not authorized to grant letters of administration on the estate of her deceased husband; and likewise answered by general demurrer, general denial, assumed risk, and contributory negligence. The plea in abatement was overruled, as were also the demurrers, and the case was submitted to a jury, who returned a verdict against appellant for $20,000, which was apportioned among appellee and her three minor children, and judgment rendered accordingly, from which this appeal is prosecuted.

The chief grounds urged for a reversal of the judgment are: First, that the court erred in failing to sustain the plea in abatement; and, second, that the verdict of the jury is not supported by the evidence. With reference to the first contention, we think it might be sufficient to say that said plea, as presented, was a collateral attack upon the judgment of the probate court appointing plaintiff administratrix, and was therefore properly overruled. See Mills v. Herndon, 77 Tex. 89, 13 S. W. 854; Rodgers v. Kennard, 54 Tex. 30; Murchison v. White, 54 Tex. 78; Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Harwood v. Wylie, 70 Tex. 538, 7 S. W. 789; Cooper v. Railway Company, 41 Tex. Civ. App. 596, 93 S. W. 201; Railway Co. v. Hook, 60 Tex. 403; Rogers v. Tompkins, 87 S. W. 379; So. Pac. Ry. Co. v. De Valle Da Costa, 190 Fed. 689, 111 C. C. A. 417.

But even if this had been a direct attempt by suit to vacate said judgment, we think that the plea could not be sustained. See Rivera v. A., T. & S. F. Ry. Co., 149 S. W. 223. The deceased having been killed while in the employ of appellant who was then engaged in interstate commerce, this suit was brought by appellee under the Federal Employer's Liability Act, passed April 22, 1908 (35 Stat. 65, c. 149), as amended by Act April 5, 1910, 36 Stat. 291, c. 143 (U. S. Comp. St. Supp. 1911, p. 1322), under which an action for the death of an employé must be brought by the personal representative of the deceased. See G., C. & S. F. Ry. Co. v. Lester, 149 S. W. 841. The contention on the part of appellant is that if, ordinarily, no necessity existed for administration upon the estate of the deceased, then no letters of administration could be granted upon his estate for the sole purpose of enabling the surviving wife to bring this suit under said Federal Employer's Liability Act. This insistence has been held in this state to be untenable in the case of Rivera v. A., T. & S. F. Ry. Co., supra, wherein it is said that, under the laws of this state, a cause of action is property and an asset of the estate, and, being property and an asset of the estate, the right to administration would, of necessity, follow; the court in this connection quoting with approval from the opinion in the case of So. Pac. Ry. Co. v. De Valle Da Costa, supra, as follows: "The enactment of a statute giving an action for death and requiring that it shall be brought by a personal representative we think should be regarded as a conclusive recognition of the right of administration to enforce such a claim. If a statute designates the personal representative of the deceased as the proper plaintiff, to limit the right to cases in which the deceased left assets other than the right of action would introduce an unreasonable and arbitrary distinction. To hold that suit must be brought in the state of Massachusetts for causing death, if the deceased left property in the state, but that it could not be brought if he had no property, would be to make a distinction in favor of persons who have estates, against persons who have no estates— to deny the remedy to those most in need of it."

The court further says: "While under certain statutes it may be said that there are no assets of the estate of the decedent subject to the claims of the general creditors of a decedent's estate, yet it should be recognized that the defendant's liability arises out of its wrong to the deceased, and that the right of the beneficiaries is derivative from the right of the deceased. The provision which makes a legal representative the proper plaintiff to enforce the liability is a recognition that the statute is based upon the rights of the deceased, and that, the rule of the common law, which forbade an action if death ensued, being annulled, the right of the deceased remains to be enforced by his personal representative, even though the statute provides a particular mode of distribution different from that of ordinary administration. To say that a reasonable...