International & G. N. R. Co. v. Barton

• Decision Date: 06 June 1900
• Citation: 57 S.W. 292
• Court: Texas Court of Appeals
• Parties: INTERNATIONAL & G. N. R. CO. v. BARTON.

57 S.W. 292

INTERNATIONAL & G. N. R. CO. v. BARTON.

Court of Civil Appeals of Texas.

June 6, 1900.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by Mrs. C. W. Barton against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. R. Fisher, for appellant. Hogg & Robertson, for appellee.

KEY, J.

Appellee brought this suit against appellant to recover damages for personal injuries alleged to have resulted from appellant's negligence in moving a car upon which she was a passenger while she was in the act of alighting therefrom at a depot. Appellant pleaded in abatement of the suit the pendency of a former action instituted by appellee. It also interposed a general denial and a plea of contributory negligence. After hearing evidence submitted in reference thereto, the trial court overruled the plea in abatement. Thereupon appellant presented an application for a continuance, which was overruled. A jury trial followed, resulting in a verdict and judgment for the appellee for $5,000. The verdict involves these propositions of fact, which are supported by testimony, and therefore found by this court as conclusions of fact: (1) Appellant was guilty of negligence, as alleged; (2) appellee was not guilty of contributory negligence; and (3) she sustained injuries as the result of appellant's negligence to the extent of $5,000.

The principal question presented for decision is the ruling of the court on the plea in abatement. This question has been elaborately and skillfully presented in the briefs submitted by the respective parties, and, after due consideration, we have reached the conclusion that the plea was properly overruled. It presented, in substance, the following facts: Appellee had instituted a former suit in the district court of Travis county, upon the same cause of action presented in this suit, against appellant and the Pullman Palace-Car Company, which suit had been removed to the circuit court of the United States. But in response to the plea it was shown by proof that appellee had paid all the costs in the state court and in the federal court in the case described in the plea of abatement, and had filed in each of said courts a motion to dismiss the former cause, and elected to abandon the former and prosecute this suit. This right of election seems to have been recognized and approved by our supreme court. Payne v. Benhem, 16 Tex. 364; Trawick v. Martin Brown Co., 74 Tex. 522, 12 S. W. 216. See, also, Wilson v. Millican (Ky.) 42 S. W. 660, 42 L. R. A. 449. Furthermore, we concur with counsel for appellee that, as the federal courts derive their power and jurisdiction from a different sovereignty from that of the state courts, in that sense they are foreign jurisdictions, in like manner as the courts of different states are foreign to each other; and therefore the pendency of a prior suit in a federal court will not abate a suit subsequently brought in a state court between the same parties, and for the same cause of action, although the two courts may sit in the same state, and have the same territorial jurisdiction. On this subject there is conflict in the decisions, but we think the weight of authority supports appellee's contention. Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506, 43 L. Ed. 808; Gordon v. Gilfoil, 99 U. S. 169, 25 L. Ed. 383; Hyde v. Stone, 20 How. 170, 15 L. Ed. 874; The Kalorama, 10 Wall. 204, 19 L. Ed. 944; Stanton v. Embrey, 93 U. S. 548, 23 L. Ed. 983; Insurance Co. v. Harris, 96 U. S. 331, 24 L. Ed. 959; Short v. Hepburn, 21 C. C. A. 252, 75 Fed. 113; Latham v. Chafee (C. C.) 7 Fed. 520; Logan v. Greenlaw (C. C.) 12 Fed. 10; Crescent City Live-Stock, Landing & Slaughter-House Co. v. Butchers' Union Live-Stock, Landing & Slaughter-House Co (C. C.) 12 Fed. 225; Weaver v. Field (C. C.) 16 Fed. 22; Hurst v. Everett (C. C.) 21 Fed. 218; Briggs v. Stroud (C. C.) 58 Fed. 720; Coe v. Aiken (C. C.) 50 Fed. 640; ...