Gutierrez v. El Paso & N. E. R. Co.

Decision Date24 March 1909
Citation117 S.W. 426
PartiesGUTIERREZ v. EL PASO & N. E. R. CO.
CourtTexas Supreme Court

Action by Enedina Gutierrez against the El Paso & Northeastern Railroad Company. There was a judgment of the Court of Civil Appeals (111 S. W. 159) reversing a judgment for plaintiff, and she brings error. Reversed, and judgment of trial court affirmed.

F. G. Morris, for plaintiff in error. Hawkins & Franklin, for defendant in error.

BROWN, J.

This suit was instituted in the district court of El Paso county on April 19, 1907, by the plaintiff in error, as administratrix of the estate of Antonio Gutierrez, for the benefit of herself as the widow of the said deceased. It was alleged that the said Antonio Gutierrez left no child. It was also alleged: That on or about the 22d day of June, 1906, in the territory of New Mexico, the said Antonio Gutierrez was in the employ of the defendant railroad company, and on that day was riding upon a flat car at the direction and command of the servants and agents of the railroad company for the purpose of being transported to another place on the said road in order to engage in the work of repairing the track; that on the said date the agents and employés of the defendant railroad company, who were engaged in handling and controlling the train in which the said car was, by their negligence in making a flying switch without giving notice to the said Antonio Gutierrez, caused him to fall upon the track of the said road and to be run over by one of its cars and thereby killed. Proper allegations were made of his earning capacity and all the facts necessary to entitle the plaintiff to recover, except that there was no allegation that he had made affidavit and given notice to the company, as required by a statute of the territory of New Mexico, which statute prescribed that no right of action should accrue to any person on account of such an accident unless the affidavit prescribed should be made within 90 days from the date of the injury. The defendant excepted to the plaintiff's petition on several grounds, among them that she could not recover as administratrix of the estate of the deceased. The railroad company also pleaded the statute of the territory of New Mexico to the effect that the plaintiff, in order to entitle her to recover, must have made an affidavit and given the notice prescribed in the statute, which it is alleged had not been done. The allegation set out the substance of the statute in detail, which it is not necessary to repeat here. Plaintiff excepted to that portion of the answer which set up the statute of New Mexico as a defense, and the trial court sustained the exception. Plaintiff also filed a supplemental petition, in which she alleged that at the time of the accident the act of Congress known as the "Employer's Liability Act," approved June 11, 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1907, p. 891]), was in force in the territory of New Mexico. The judge of the district court gave a charge to the jury, in which he virtually submitted the plaintiff's case upon the act of Congress above stated. The jury returned a verdict for $3,500 in favor of the plaintiff, and judgment was entered accordingly, which judgment the Court of Civil Appeals reversed and remanded the cause, from which judgment Associate Justice Fly dissented. The validity of the act of Congress of June 11, 1906, before mentioned, was involved in this litigation. The railroad company, in its brief presented to the Court of Civil Appeals, set up no question of fact, except that the plaintiff had failed to prove that she made and presented an affidavit required by the law of New Mexico, which was not controverted. The following questions of law are presented to the court in that brief: (1) That the plaintiff, as administratrix of the estate of the deceased, could not maintain her action in the courts of Texas. (2) That under the law of the territory of New Mexico she had no right of action because she had failed to make the affidavit required by law. (3) That the trial court erred in submitting the case upon the act of Congress before mentioned.

The Congress of the United States enacted a statute, from which we make the following extract, which statute was approved June 11, 1906: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another, or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employés, or, in the case of his death, to his personal representative for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employés, or by reason of any defect or insufficiency due to its negligence in its cars, engines appliances, machinery, track, roadbed, ways or works." At common law the widow of Antonio Gutierrez would have no right of action on account of the death of her husband. She must rely upon the statute of the territory of New Mexico, or upon the act of the Congress of the United States, commonly known as the "Employer's Liability Act," hereafter called the "liability act." In her suit she has claimed a recovery under each of said laws. In order to recover under the act of the territorial Legislature, the plaintiff must show that she has complied with all of the conditions which that act imposed upon her, and, having failed to make such...

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13 cases
  • Eichelberger v. Eichelberger
    • United States
    • Supreme Court of Texas
    • May 23, 1979
    ...and follow the supreme law of the land. Emmons v. Pacific Indemnity Co., 146 Tex. 496, 208 S.W.2d 884 (1948); Gutierrez v. El Paso & N. E. R. Co., 102 Tex. 378, 117 S.W. 426 (1909); McKee v. Brooks, 64 Tex. 255 (1885). In Emmons we said that this court was controlled in the construction of ......
  • Sallee v. Dalton
    • United States
    • Supreme Court of Arkansas
    • May 5, 1919
    ...cannot add to or take from the constitutional jurisdiction of the court. 15 C. J. 858; 94 Ark. 65; 126 S.W. 90; 27 Ark. 202; 2 Id. 93; 117 S.W. 426. J. Lewis and Rose, Hemingway, Cantrell & Loughborough, for appellees. There is no reason why the Legislature should not sanction the making of......
  • Martin v. Consolidated Casualty Ins. Co., 10565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1943
    ...151, 70 S.W.2d 409; the other for compensatory damages for wrongful death based on the Texas death statute, Gutierrez v. El Paso & N. E. R. R. Co., 102 Tex. 378, 117 S.W. 426; Kirby Lumber Co.'s Receivers v. Owens, 56 Tex.Civ.App. 370, 120 S.W. 936; Elliott v. City of Brownwood, 106 Tex. 29......
  • Missouri, K. & T. Ry. Co. of Texas v. Rogers
    • United States
    • Court of Appeals of Texas
    • April 30, 1910
    ...Hyde v. Railway Co., 31 App. D. C. 466; Hanley v. Railway Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333; Gutierrez v. Railway Co., 102 Tex. 378, 117 S. W. 426. Finding no error in the record, the judgment is † Writ of error denied June 22, 1910. ...
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