Illinois Cent. R. Co. v. Ryan

• Decision Date: 14 June 1919
• Docket Number: (No. 6238.)
• Citation: 214 S.W. 642
• Parties: ILLINOIS CENT. R. CO. v. RYAN.
• Court: Texas Court of Appeals

214 S.W. 642

ILLINOIS CENT. R. CO. v. RYAN.

(No. 6238.)

Court of Civil Appeals of Texas. San Antonio.

June 14, 1919.

Rehearing Denied June 30, 1919.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Suit by Virgil Ryan, by next friend, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hicks, Phelps, Dickson & Bobbitt, of San Antonio, for appellant.

J. D. Childs and J. J. Sweeney, both of San Antonio, for appellee.

COBBS, J.

This suit was filed in the Seventy-Third district court on the 27th day of November, 1917, but tried upon an amended original petition filed herein on the 18th day of April, 1918.

The suit is against the Illinois Central Railroad Company, incorporated under the laws of Illinois, alleged to be doing a railroad business in the state of Texas with an office in San Antonio, where it maintains an agent or representative.

"This suit was filed by appellee, Virgil Ryan, by his father, Charles E. Ryan as next friend, * * * to recover damages in the sum of $3,000 for personal injuries alleged by plaintiff to have been received through the negligence of the defendant in the town of Minonk, Woodford county, Ill., on or about the 11th day of November, 1910, by being thrown or jarred from an oil tank car on which plaintiff was playing at the time a train of appellant coupled on to a string of cars of which the oil tank car was a part.

"The plaintiff alleged that he was a child of only nine years of age, and that the defendant allowed the cars to stand at different times on the track in question, and on a place frequently used by pedestrians as a footway and near a crossing, and that children had constantly and notoriously played on the right of way and standing cars of the defendant under circumstances calculated to induce the children, including plaintiff, to believe that their presence on said premises was permitted by defendant.

"Plaintiff also alleged the negligence of the defendant to be in failing to ring a bell or sound a whistle of the locomotive, and in operating the train at a high rate of speed, contrary to a city ordinance of said city or town, and in bumping into said train of cars, knowing that plaintiff was thereon, and in a position of danger.

"Appellant, who was defendant below, answered by general and special exceptions, by a general denial, and specially pleaded, in substance, that the tank car from which plaintiff fell was at the time standing in the railway yards and on the private premises of defendant, and that the plaintiff had no business thereon, and was a trespasser thereon under the laws of the state of Illinois.

"The appellant further specially pleaded the laws of Illinois with respect to the mutual duties and obligations of plaintiff and defendant, and also alleged specially an ordinance of the city or town of Minonk making it a penal offense for any one, not having business thereon, to board any standing or moving car without permission, within the limits of said city or town.

"When the case was called for trial, and prior to announcement therein, appellant presented to the trial court a motion or application of the defendant for a postponement of the trial of this cause during the period of federal control of the defendant in accordance with a proclamation of the Director General of Railroads, known as General Order No. 26 with respect to the trial of cases filed in courts far removed from the counties where the accidents occurred, and whose trial would result in the taking of railway employés off their trains, which were then urgently needed for the transportation of men and munitions in the prosecution of the war.

"The motion or application was verified by the assistant general manager of defendant, and the allegations thereof were not denied or controverted by plaintiff. The court overruled this motion or application. Thereupon appellant filed a regular motion for a continuance under the terms of the statute of Texas. This motion was also overruled. The defendant excepted to the action of the court in both instances in overruling said motions, and presented its bills of exceptions, which were duly allowed.

"The defendant thereupon presented its plea in abatement, setting up the right of appellant to have the cause continued during the period of federal control, under the terms of the proclamation above mentioned. This plea was also overruled, to which defendant excepted.

"Thereupon the case was tried before the court without a jury, and the court rendered its judgment in favor of the plaintiff and against appellant for the sum of $3,000, the full amount sued for, together with all costs of court. To this judgment of the court the appellant then and there in open court excepted.

"In due time appellant filed its motion for a new trial, which was by the court heard and overruled, to which action of the court the appellant then and there in open court excepted and gave notice of appeal, and in due time filed its appeal bond, bringing the cause to this court."

The appellant's first, second, third, fourth, fifth, sixth, and seventh assignments all are practically to the same effect, complaining of the supposed error of the trial court in not postponing or continuing, and not sustaining plea in abatement, raising the issue that said railroad by the authority of the President of the United States, known as General Order No. 26 of the Director General of the United States, alleging that the just interests of the government of the United States would be prejudiced by the trial of this cause at the then present term of court, and the trial court should have postponed said trial during the period of federal control. And upon overruling the application for continuance, the court indorsed on appellant's bill of exception No. 2, as follows:

"The court allows this bill of exception No. 2 with the following qualifications:

"(1) The court qualifies it with the same qualifications as used in qualifying the preceding bill of exception No. 1, which may be considered as qualifications of this bill.

"(2) The court also finds that this is the third application of the defendant for a postponement or continuance of this cause, and as such it does not conform to our statutory requirements, and the court, although having other reasons, does not deem it necessary to here state them."

The reasons given by the court indorsed on bill of exceptions No. 1, are too lengthy to insert, but seem to be conclusive and the refusal to continue was within the discretion of the court, which was not abused, and the showing was not sufficient to sustain the motion.

We have examined the orders issued by the Director General, and there is nothing there to indicate he contemplated or intended to interfere with the jurisdiction and orderly procedure of courts of competent jurisdiction or the rights of litigants to have their day in court. Of course no judgment may be executed against or the possession of the government in any manner be disturbed. This is true in every case where property is in custodia legis. This suit was instituted prior to the possession and control by the government of the railroads, through the Director General of the United States, to which he has not become or been made a party. It, therefore, in no manner disturbs him or requires him to take notice thereof or concern himself with respect thereto in any manner whatever, unless an effort should be made to disturb the possession. But we fail to see how the court in this issue did anything contrary to the wishes and directions of the Director General. It could not at that time, by forcing the trial, cause serious interference with the physical operation of railroads under the control of the government.

Section 10 of the act of March 21, 1918 (chapter 25 [U. S. Comp. St. 1918, § 3115¾j]) provides, among other things:

"Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or common law, except in so far as may be inconsistent with the provisions of this act," etc.

It provides that suits may be brought, and judgments rendered. It provides:

"No defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. * * * But no process, mesne or final, shall be levied against any property under such federal control."

We do not think the court erred in his ruling. For the support of our views, where the same question is discussed and decided against appellant's contention, see El Paso & S. W. Ry. Co. v. Lovick, 210 S. W. 283; Railway v. Steel, 180 Ky. 290, 202 S. W. 878; Moore v. Railway, 106 Misc. Rep. 58, 174 N. Y. Supp. 60, in January, 1919. This last book cited is not before us, but seems entirely in point as copied in appellee's brief. We do not think the case of Rhodes v. Tatum, 206 S. W. 115, and Wainwright v. Penn. Ry. (D. C.) 253 Fed. 459, and other cases cited by appellant, are to the contrary of what we hold.

We overrule the above-named assignments.

Appellant's eighth and ninth assignments of error and propositions thereunder allege as error the action of the court in excluding the answers of Weymouth Kirkland and Robert J. Slator,...