Kansas City, M. & O. Ry. Co. of Texas v. Pope

• Decision Date: 01 February 1913
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. POPE et al.
• Court: Texas Court of Appeals

153 S.W. 163

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. POPE et al.

Court of Civil Appeals of Texas. Ft. Worth.

February 1, 1913.

On motion for rehearing. Motion overruled.

For former opinion, see 152 S. W. 185.

SPEER, J.

On December 14, 1912, we overruled appellees' motion for a rehearing, but on January 11th thereafter we set aside that order upon the oral suggestion of appellees' counsel that the question of law upon which we had reversed the case had very recently been decided contrary to our holding by the Supreme Court of the United States in the case of Missouri, Kansas & Texas Railway Co. v. Sallie C. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. ___. We have awaited that decision, and now have before us a copy of the opinion. In that case it seems that Sallie C. Wulf in her individual capacity commenced the action January 23, 1909, in the Circuit Court of the United States for the Eastern District of Texas to recover damages by reason of the death of her son, Fred S. Wulf, alleging that she was the sole heir and next of kin of the deceased, that there had been no administration of his estate, and that none was necessary. More than two years thereafter she filed her first amended original petition, alleging that on January 4, 1911, she had been appointed temporary administratrix of the deceased's estate, and to the contention of the railroad company that the cause of action by the legal representatives under the federal statute was barred by the statute of limitations the Supreme Court, through Mr. Justice Pitney, says: "It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company, and by reason of defects in one of its locomotive engines due to its negligence; and that since the deceased died unmarried and childless the plaintiff, as his sole surviving parent, was the sole beneficiary of the action. It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employer's Liability Act, and to know that with respect to the responsibility of interstate carriers by railroad to their employés injured in such commerce after its enactment it had the effect of superseding state laws upon the subject. Second Employer's Liability Cases, 223 U. S. 1, 53 [32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the...