Hallaway v. Thompson

• Decision Date: 18 January 1950
• Docket Number: No. A-2399,A-2399
• Citation: 226 S.W.2d 816,148 Tex. 471
• Parties: HALLAWAY v. THOMPSON, Trustee.
• Court: Texas Supreme Court

Page 816

226 S.W.2d 816

148 Tex. 471

HALLAWAY v. THOMPSON, Trustee.

No. A-2399.

Supreme Court of Texas.

Jan. 18, 1950.

Rehearing Denied Feb. 15, 1950.

Collins, Dies, Williams & Garrison, Lufkin, Kemp, Lewright, Dyer & Sorrell, Corpus Christi, W. M. Lewright, Corpus Christi, for petitioner.

Kleberg, Eckhardt, Mobley, Lockett & Weil, Corpus Christi, Leslie S. Lockett, Corpus Christi, Kelley, Mosheim & Ryan, Houston, Robert H. Kelley, Houston, for respondent.

HART, Justice.

The sole question presented in this case is whether the petitioner's action was barred by limitations, as held by both of the courts below.

The petitioner was injured on December 1, 1944, in a collision between a switch engine, on which he was riding, and an automobile. On November 19, 1946, he filed his original petition, complaining of Guy A. Thompson, Trustee for the St. Louis, Brownsville & Mexico Railway Company (hereafter called the Mexico Company), and alleging that he was an employee of this defendant at the time of the injury. The plaintiff's first amended original petition, filed on August 12, 1947, complained of the same defendant in the same capacity. In his second amended original petition, filed on December 12, 1947, the plaintiff still complained of Guy A. Thompson, as Trustee for the Mexico Company, and also complained of him in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company (hereafter called the Gulf Company). In this petition the plaintiff alleged that the defendant Trustee was appointed as Trustee for the Mexico Company and also for the Gulf Company by the United States District Court in Missouri in a proceeding entitled 'In the Matter of Missouri Pacific Railroad Company, in Proceedings for the Reorganization of a Railroad,' that as such Trustee he was in possession of all of the properties of the two named railroads, that he was operating them together with other railroads as the Missouri Pacific system, that as Trustee for each railroad he had the same counsel, that the Trustee hired various employees who performed services for each railroad during the same period of time, that it was peculiarly within the knowledge of the Trustee as to when an individual employee was working for him in his capacity as Trustee for one railroad or the other, and that it was practically impossible for the plaintiff to determine whether he was working for the Trustee in one capacity or the other.

On April 22, 1948, the plaintiff filed his third amended original petition, complaining of Guy A. Thompson only in his capacity as Trustee for the Gulf Company. The plaintiff repeated the allegations of his second amended original petition regarding the Trustee's appointment and his operation of the two railroads as stated above, and further pleaded as follows:

'That on the date hereinafter mentioned, plaintiff herein was in the employ of the said defendant Trustee as a switchman, and had been so employed for a considerable period of time prior to the date of his accident, as hereinafter detailed, and at said time the employees, particularly including the engineer and fireman in charge of the locomotive or switch engine hereinafter referred to, were also employees of the defendant Trustee, and were, on said occasion, operating the said switch engine in the course of his employment for said Trustee and in the operation of the aforesaid railway system, engaged in the transportation, switching and handling of freight cars and passengers in and around the City of Corpus Christi, Nueces County, Texas, but it being, as above explained, very difficult for plaintiff to determine whether, at the actual time of the accident involved herein, he was an employee of the defendant in his capacity as Trustee for the St. Louis, Brownsville & Mexico Railway Company or in his capacity as Trustee for the said San Antonio, Uvalde & Gulf Railroad Company, and at the time of the filing of Plaintiff's Original Petition herein, it was the information and belief of plaintiff herein that he was then acting as an employee of the defendant Guy A. Thompson, as Trustee for the St. Louis, Brownsville & Mexico Railway Company, but at the time of the filing of his Second Amended Original Petition herein, as is averred in said petition, plaintiff herein had ascertained that there was some question as to which of the capacities the defendant occupied on the occasion in question, and as to whether plaintiff was or was not an employee of said defendant in his capacity as Trustee for said St. Louis, Brownsville & Mexico Railway Company, rather than in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, but plaintiff now respectfully shows unto the Court that he has been informed and believes, and upon such information and belief here avers the facts to be that, on the occasion hereinafter alleged, the switch engine and crew, including plaintiff herein, were operating and running said switch engine for the defendant Trustee in his capacity as Trustee for the San Antonio, Uvalde & Gulf Railroad Company, and, therefore, plaintiff here now seeks judgment, as is hereinafter shown, against the defendant Trustee in his capacity as Trustee for said San Antonio, Uvalde & Gulf Railroad Company.'

The defendant, as Trustee for the Gulf Company, specially excepted to the plaintiff's third amended original petition on two grounds: (1) that the plaintiff's cause of action 'accrued more than two years prior to the commencement of this suit against this Defendant and more than two years prior to the filing of the Second Amended Original Petition in which this Defendant was made a party for the first time, and that the same is barred by limitations,' and (2) that if the plaintiff's cause of action is governed by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which was not admitted, it 'accrued more than three years prior to the commencement of this action as to this Defendant and more than three years prior to the filing of said Second Amended Original Petition in which for the first time this Defendant was made a party defendant, and that same is barred by the limitation as prescribed in said Act.'

The district court sustained both of these special exceptions and, upon the plaintiff's refusing to amend his petition, dismissed the cause. The district court's judgment was affirmed by the Court of Civil Appeals. 222 S.W.2d 702.

The decision of this case turns on the question whether the plaintiff's action against the defendant was commenced when the plaintiff's original petition was filed on November 19, 1946, which was less than two years after the cause of action accrued, or when his second amended original petition was filed on December 12, 1947, which was more than three years after the cause of action accrued. As we have already stated, in the original petition, Guy A. Thompson, as Trustee for the Mexico Company, was named as a defendant, and in the second amended original petition for the first time Guy A. Thompson, as Trustee for the Gulf Company, was named as a defendant.

If the action against the respondent was commenced with the filing of the plaintiff's original petition, then it was not barred by limitation, whether the Texas two-year statute, Article 5526, Vernon's Ann.Civ.St., or the federal three-year statute, 45 U.S.C.A. § 56, applies; on the other hand, if the action against the respondent was not commenced until the second amended original petition was filed, then it would be barred under either statute. However, in determining whether the action against the respondent was commenced when the suit was originally filed or only when he was first sued by amended pleading in the capacity in which he is now sought to be held liable, it is material to decide whether the suit is one governed by state law or the federal statute. If the suit is one under the state law, then of course the provisions of our statutes and the decisions of the Texas courts control. On the other hand, if under this record the suit is based on the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, then the decisions of the Supreme Court of the United States construing this statute, and particularly Section 6, 45 U.S.C.A. § 56, relating to limitation, are controlling. Pope v. Kansas City, M. & O. Ry. Co. of Texas, 109 Tex. 311, 207 S.W. 514; Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117; Texarkana & Ft. S. Ry. Co. v. Casey, Tex.Civ.App., 172 S.W. 729, writ refused.

It is essential to make a case under the Federal Employers' Liability Act, not only that the carrier is engaged in interstate or foreign commerce, but also that the person suffers the injury while he is employed in such commerce, as is expressly provided in Section 1 of that act, 45 U.S.C.A. § 51. Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A., N.S., 44; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas.1914C, 156. The plaintiff's petition in the present case alleges that the carrier was engaged in interstate and foreign commerce, but it does not allege that the injury occurred while the plaintiff was employed in such commerce. Since the judgment was based entirely on exceptions to the pleadings, there is nothing by which we can determine the basis of the plaintiff's cause of action except the allegations in the pleadings. On this basis, the plaintiff failed to bring his case under the federal act, and the case must therefore be determined by the construction given by the Texas courts to our statutes of limitation.

There is no Texas statute relating particularly to limitation of actions for personal injuries in suits by employees against railroads, although this kind of action is covered in other respects by Articles 6432-6443, Vernon's Ann.Civ.St. The general two-year statute relating to actions for personal...