Kirby Lumber Co.'s Receivers v. Owens

• Decision Date: 09 June 1909
• Citation: 120 S.W. 936
• Parties: KIRBY LUMBER CO.'S RECEIVERS v. OWENS.
• Court: Texas Court of Appeals

120 S.W. 936

KIRBY LUMBER CO.'S RECEIVERS v. OWENS.

Court of Civil Appeals of Texas.

June 9, 1909.

Rehearing Denied June 30, 1909.

Appeal from District Court, Jasper County; W. B. Powell, Judge.

Action by W. J. Owens against the receivers of the Kirby Lumber Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Andrews, Ball & Streetman and Baker, Botts, Parker & Garwood, for appellants. F. J. & R. C. Duff and A. L. Davis, for appellee.

FLY, J.

Appellee, for himself and his wife, M. E. Owens, instituted this suit to recover damages of appellants, alleged to have accrued on account of the death of L. B. Owens, their 17 year old son, who was killed in a car, while in the employment of appellants. A trial by jury resulted in a verdict and judgment for appellee in the sum of $1,000, $500 being apportioned to each of the parents.

Under the common law no cause of action arose in favor of any one for damages arising from the death of a person, and the statute creating the liability is the only warrant for instituting such actions, and its provisions alone can be consulted in arriving at a conclusion in fixing such liability. The first statute authorizing suits for damages resulting from the negligent infliction of injuries resulting in death was passed in 1860 (Laws 1859-60, p. 32, c. 35), and that act was amended in 1887 (Laws 1887, p. 44, c. 62) and 1892 (Laws 1892, p. 5, c. 7). In the original act, which was carried into the Revised Statutes of 1879 as article 2899, the portion fixing the liability of railroads, steamboats, stagecoaches, or other vehicles, for the conveyance of goods or passengers, for their own negligence and that of their servants or agents, was in the precise language of the present statute, with the exception that the negligence or carelessness of the servants or agents was qualified by the word "gross." The second clause of article 3017, Rev. St. 1895 is the same that it was in the original statute, but by the amendment of 1887 the word "gross" was stricken out, and in 1892 the latter part of section 1, fixing the liability of receivers, or other persons in charge or control of any railroad, was added by the Legislature. The present statute is as follows:

"Article 3017: Actions for injuries resulting in death brought when:

"An action for actual damages on account of injuries causing the death of any person may be brought in the following cases:

"1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, (or) hirer of any railroad, steamboat, stagecoach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers, or other person or persons, in charge or control of any railroad, their servants or agents, and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery, or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company.

"2. When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another."

It will be noted that it is not the receivers of railroad companies who are made liable under the amendment of 1892, but it is the "receiver or receivers, or other person or persons, in charge or control of any railroad, their servants or agents" who are rendered liable. The word "railroad," as used in the amendment in connection with receivers and other persons, must have the same meaning and import that it has in the first part of the section, and, unless there are qualifying or descriptive words in that portion of the section which restrict the meaning of the word, it must include railroads of every description. This brings us to the consideration of the language used in the first part of the statute which names those to be affected, and the only question involved in this case is this: Is the proprietor, owner, charterer, or hirer of any railroad, or the receiver or other person in charge or control of any railroad, liable for the death of a person caused by the negligence of a servant or agent, when such railroad is not used as a common carrier, but merely as an incident to the principal business?

The facts in this case are that the Kirby Lumber Company was chartered by the state of Texas to establish and maintain a lumber company, "to acquire, hold and own lands by lease or purchase, for the purpose of acquiring the supply of lumber, timber and logs necessary to the conduct of said business, to purchase, lease, erect and operate all necessary sawmills, planing mills, dry kilns, tramroads and all necessary incidents to such business, to manufacture and sell lumber, timber and logs, together with the purchase and sale of such goods, wares and merchandise used for such business." In pursuance of that authority the corporation went into the lumber business, and in the prosecution of that business constructed a road consisting of a roadbed with steel rails laid upon wooden ties, of standard gauge, just as railroads are usually constructed, the same being 12 miles in length and running from Kirbyville, on the line of the Gulf, Colorado & Santa Fé Railway Company, to the works of the lumber company in the pine forest. Over this line of road trains consisting of locomotives propelled by steam, and cars for the carriage of logs, and the employés and their food supplies, were operated originally by the lumber company and then by Cecil A. Lyons and J. S. Rice, as receivers of the company. It was the custom of the Gulf, Colorado & Santa Fé Railway Company to furnish the receivers with the requisite number of cars for the prosecution of the lumber business, and they would attach their locomotives to the cars and convey them out to the woods, where they were loaded with ties manufactured by the receivers and then carried back to Kirbyville and there delivered to the railroad company named pursuant to a contract with that company. The tie train while on the track of the lumber company was operated by the employés of the receivers. In addition to the tie train a log train was operated by the receivers to transport logs from the woods to the mills in Kirbyville. At times persons living in the vicinity of the road would ride, free of charge, to and from Kirbyville on a train consisting of a locomotive and three cars, as would persons seeking employment in the woods. The locomotives, the property of the lumber company, used on the lumber road, were of the type used by other railroads, and they would at times leave Kirbyville and run on the track of the Gulf, Colorado & Santa Fé Railway Company to other points on its line where the lumber company had mills. L. B. Owens, an employé of appellants, while on his way to the woods, to engage in the labor for which he was employed, in one of the lumber company's cars, was killed through the negligence of one Wyric, an employé of appellants and the foreman of the gang of which L. B. Owens was a member. Deceased was a boy of 17 years of age, who lived with his parents, and they were damaged by his death in at least the sum found by the jury.

The facts clearly establish that the line of railway operated by appellants was in no wise different in its construction and equipments from the railroads in use throughout the country, and that it was used as other railroads for the conveyance of freight, if not of passengers, just as they are. Its locomotives and cars were similar to those ordinarily used on railroads, and at times were operated on its only connecting...