International-Great Northern R. Co. v. Lucas

• Decision Date: 16 December 1938
• Docket Number: No. 1863.,1863.
• Citation: 123 S.W.2d 760
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. et al. v. LUCAS et al.
• Court: Texas Court of Appeals

123 S.W.2d 760

INTERNATIONAL-GREAT NORTHERN R. CO. et al. v. LUCAS et al.

No. 1863.

Court of Civil Appeals of Texas. Eastland.

December 16, 1938.

Rehearing Denied January 20, 1939.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Action by Mary M. Lucas and others against International-Great Northern Railroad Company and another for death of Luke L. Lucas, who was killed in a collision between two motorcars on the International-Great Northern Railroad. From a judgment for plaintiffs in the sum of $26,000, defendants appeal.

Judgment affirmed.

Sewell, Taylor, Morris & Garwood, of Houston, and B. F. Davis, of Jacksonville, for appellants.

Seale & Thompson, of Nacogdoches, Norman & Norman, of Rusk, and King & Cox, of Houston, for appellees.

FUNDERBURK, Justice.

The judgment of the District Court from which this appeal is prosecuted, awarded Mrs. Mary M. Lucas, the surviving wife, and Mary Beth, Tom Jack and Ray Burk Lucas, surviving children of Luke L. Lucas, deceased, the recovery of $26,000, as damages (apportioned) for the death of said Luke L. Lucas, who was killed in a motor car collision between two motor cars on the International-Great Northern Railroad. The judgment was against International-Great Northern Railroad Company, with provision for execution against it; and also against Guy A. Thompson, Trustee (in bankruptcy) of said company, with provision for certification of the judgment as to him to the bankruptcy court, being the United States District Court for the Eastern District of Missouri, Eastern Division, wherein Guy A. Thompson had been appointed Trustee and had control of the properties of said Railroad.

Luke L. Lucas was a member of the firm of Lucas & Lucas, composed of himself and G. E. Lucas, who were contractors under employment of said Railroad Company, by the terms of which, according to written contract, they were to furnish all the necessary materials, superintendance, labor and equipment, and execute, construct and finish complete in every respect the necessary facilities in connection with oil field development on the Henderson and Overton branches of the International-Great Northern Railroad Company. The appellants defended on the grounds, among others, that Luke L. Lucas was killed while engaged in interstate commerce; and that, by provision of the contract employing said firm of contractors, the latter had assumed and agreed to indemnify the Railroad Company against all claims for damages for negligence of said Railroad Company, in transporting the agents and employees of said contractors, which, it was alleged, in effect, included the claim in suit. The parties to said contract were said Railroad Company, referred to therein as "The Company" and "Lucas & Lucas, a co-partnership * * * herein called The Contractor." Provisions of said contract deemed material to the questions to be considered are:

"5. The Contractor agrees to comply with the requirements of the State in which the work is done with respect to safety of employees and to assume all liability for or on account of injuries to, or deaths, of the agents and employees of the Contractor * * * which may occur during the transportation of said persons * * * over the lines of the Company and further agrees to assume all liability for injuries to or death of the agents and employees of the Contractor * * * which may occur during the prosecution of the work covered by this agreement whether said injuries to or death of said persons * * * shall have been occasioned by reason of anything whatsoever, whether by reason of the negligence of the agents and employees of the Company, or by reason of the operation of the trains, cars and engines of the Company or otherwise; and the Contractor hereby agrees to indemnify and save harmless the Company from all claims, expenses and damages or recoveries for or on account of anything, the liability for which is by this paragraph hereby expressly assumed by the Contractor * * *." (Italics ours.)

"8. * * * And furthermore, the Company as part of and in further consideration for the services to be performed as herein provided, will furnish transportation over its own lines for the necessary persons * * * required for * * * the performance of the work covered by this letter as follows; which transportation the Contractor agrees shall be used only by the persons * * * for which the same is furnished * * *."

At the time of the collision Luke L. Lucas was riding on a two-man motor car operated by Leroy M. Elledge, Supervising Engineer for said Railroad Company, of the work of said Contractor; the other motor car involved in the collision being operated by Zay Gardner, another contractor doing other contract work for said Railroad Company.

The contracting firm of Lucas & Lucas and the contractor Zay Gardner alike had the right to free transportation over the railroad, and Zay Gardner was personally operating one of the motor cars on the occasion and consequent death of Luke L. Lucas.

We believe it to be unnecessary, because of our conclusion upon one point, to determine either of the questions (1) whether deceased, at the time of the accident, was engaged in interstate commerce, or (2) whether he was (technically) a passenger on said railroad. Conceding, provisionally, and without deciding, that deceased came to his death while engaged in interstate commerce, and at a time when he did not sustain the technical relation of passenger to said railroad company, the plaintiffs, we think, upon the issues of negligence, proximate cause and damages, found in their favor, in no respect challenged upon this appeal, were entitled to the judgment, unless the provision of the said contract for indemnity of the railroad company from liability for negligence resulting in the injuries or death of "agents, and employees of the Contractor" was applicable to deceased. That such provision of the contract is not applicable was decided by the Court of Civil Appeals (70 S.W.2d 226) and by the Supreme Court (128 Tex. 480, 99 S.W.2d 297, 100 S.W.2d 97) upon a former appeal of this case. Said the opinion of the Supreme Court [page 299]: "It is not the law that a man can be the agent of himself. In attending to the business of the firm, Luke Lucas was acting for himself and as the agent of his copartner. The firm, as such, did not have independent legal existence, with legal capacity to have an agent. In law and in fact, the term `agents and employees of the contractor,' as used in the foregoing provisions, means the agents and employees of Luke Lucas and G. E. Lucas, as copartners, and does not include either partner."

We apprehend that no authority can be found to the contrary. It is in line with the proposition that under Workmen's Compensation Laws a member of a partnership is not protected as an employee since one cannot be both employer and employee. Berger v. Fidelity Union Cas. Co., Tex.Civ.App., 293 S.W. 235; Millers' Ind. Underwriters v. Patten, Tex.Civ.App., 238 S.W. 240; Gebers v. Murfreesboro Laundry Co., 159 Tenn. 51, 15 S.W.2d 737. In our criminal laws the Court of Criminal Appeals has several times had occasion to hold, in effect, that a partner was not to be regarded as an agent of the firm. Ray v. State, 48 Tex.Cr.R. 122, 86 S.W. 761; O'Marrow v. State, 66 Tex.Cr.R. 416, 147 S.W. 252. The decision of the Supreme Court upon this point in the former appeal is cited to the text of C.J.S. as follows: "While the partnership relation includes the relation of principal and agent, it differs from a pure agency in that a partner when acting for the partnership binds himself and his co-partners, while an agent acts for and binds his principal alone." 2 C.J.S., Agency, p. 1031, § 2, h. See, also, 2 C.J. 425, sec. 12. Besides all else, as pointed out by Chief Justice Johnson of the Texarkana Court of Civil Appeals, on the former appeal, the contract itself shows a distinction between the "Contractor" and the "agents and employees of the Contractor." 70 S.W.2d 228. In the preceding paragraph 4 that "The Contractor * * * further expressly covenants and agrees that in case of accident caused by act or omission of the Contractor, or of any agent, servant or employee thereof, * * * which shall result in damage or injury to the Contractor, * * * the Contractor will acquittance and full discharge" obtain from such damaged or injured person, etc. This relates to other injuries of person or property than such as received in "transportation." The limitation in paragraph 5 of the indemnity therein provided as against injuries and deaths of the "agents and employees of the Contractor" simply does not admit of a meaning to include the...