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

• Decision Date: 29 June 1912
• Citation: 149 S.W. 841
• Parties: GULF, C. & S. F. RY. CO. v. LESTER et al.
• Court: Texas Court of Appeals

Page 841

149 S.W. 841

GULF, C. & S. F. RY. CO. v. LESTER et al.

Court of Civil Appeals of Texas. Austin.

June 29, 1912.

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

Action by Mrs. B. B. Lester and another against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed and dismissed.

Terry, Cavin & Mills, of Galveston, and A. H. Culwell, of Dallas, for appellant. Winbourne Pearce and A. L. Curtis, both of Belton, for appellees.

RICE, J.

B. B. Lester, on the 27th of October, 1909, while engaged as a locomotive engineer on appellant's line of railway between Temple and the Leon river, was killed in a head-on collision, and this suit was brought by appellee, his surviving widow, against appellant, for herself and as next friend for her minor daughter, to recover damages therefor, alleging that his death was occasioned through the negligence of the railway company, in that it failed to adopt a system of rules for the operation of its trains which was reasonably safe. Appellant specially excepted to plaintiffs' petition, and pleaded in bar of said action that plaintiffs were not entitled to recover, because at the time of the accident her deceased husband was an employé of appellant, who as a common carrier was engaged in interstate commerce, and this fact was established by the uncontroverted evidence. There were other pleadings, not necessary to be stated. A jury trial resulted in a verdict and judgment in behalf of Mrs. Lester in the sum of $15,000, and in favor of her minor daughter in the sum of $5,000, from which this appeal is prosecuted.

The court overruled appellant's exceptions and special plea, and likewise refused to give several special charges asked by it, directing a verdict in its favor on the ground that plaintiffs were not entitled to maintain this suit, because the evidence showed that the railway company at the time of the accident was engaged in interstate commerce, and the deceased was employed by it in carrying such commerce. Did the court err in refusing to sustain said plea, or in declining to so charge the jury? The answer to this question necessarily involves a consideration of the act of Congress, relating to the liability of common carriers, of April 22, 1908 (35 Stat. 65, c. 149), as amended by the act of April 5, 1910 (36 Stat. 291, c. 143 [U. S. Comp. St. Supp. 1911, p. 1324]), known as the Employer's Liability Act, which provides by its first section that "every common carrier by railroad, while engaged in commerce between any of the several states or territories, etc., * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, and if none, then of such employé's parents and if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employés of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipments." Our state statute on this subject declares that "every corporation, receiver or other person operating any railroad in this state shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad, or in case of the death of such employé to his or her personal representative, for the benefit of the surviving widow and children or husband and children, and mother and father of the deceased, and if none, then of the next (of) kin dependent upon such employé, for such injury or death, resulting in whole or in part from the negligence of the officers, agents or employés of such carrier," etc. This act provides that, in case of the death of such employé, the action may be brought without administration by all the parties entitled thereto, or by any one or more of them for the benefit of all, and, if all the parties be not before the court, the action may proceed for the benefit of such of said parties as are before the court. Acts 31st Leg. p. 279, approved April 13, 1909.

It will be observed that the federal act has no such provision relative to the rights of the beneficiaries to bring suit without administration, but the cause of action is declared in the federal statute to exist only to the personal representative of the deceased, for the benefit of his family, etc. It is insisted by appellant that there is a conflict in this respect between the two statutes, and that, this being true, the state statute can furnish no basis for a recovery, when the injury, as in the present case, from which death results to an employé, occurs while he was at work for the carrier engaged in interstate commerce, and that the action must, in such cases, be brought, if at all, by the personal representative of the deceased, to wit, the executor or administrator, and not by the beneficiaries named in the federal statute. We are inclined to agree with this contention. In the cases of Mondou v. New York, New Haven & Hartford Ry. Co., Northern Pacific Ry. Co. v. Babcock, Adm'x, and the cases of New York, New Haven & Hartford Ry. Co. v. Walsh, Adm'x, and Walsh v. New York, New Haven & Hartford Ry. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. ___, decided by the Supreme Court of the United States January 15, 1912, where the federal statute above alluded to was passed on, the court held that, where the regulations thereof were in conflict with the laws of the state on the same subject, the federal law superseded and controlled, quoting with approval an extract from the opinion of Chief Justice Marshall in McCullough v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, as follows: "If any one proposition could command the universal assent of mankind, we might expect it would be this: That the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason. The people have, in express terms, decided it by saying, `This Constitution, and the laws of the United States, which shall be made in pursuance thereof, * * * shall be the supreme law of the land,' and by requiring that the members of the state Legislatures, and the officers of the executive and judicial departments of the states, shall take oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, `anything in the Constitution or laws of any state to the contrary, notwithstanding.' This great principle is that the Constitution and laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective states, and cannot be controlled by them." Continuing, the court says: "And particularly apposite is the repetition of that principle in Smith v. Alabama, 124 U. S. 465-473 [8 Sup. Ct. 564, 566 (31 L. Ed. 508)]: `The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.' True, prior to the present act, the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employés while engaged in such commerce. But that was because Congress, although empowered to regulate that subject,...