Missouri Pac. Ry. Co. v. Cullers.

• Decision Date: 16 June 1891
• Citation: 17 S.W. 19
• Parties: MISSOURI PAC. RY. CO. v. CULLERS.
• Court: Texas Supreme Court

17 S.W. 19

MISSOURI PAC. RY. CO. v. CULLERS.

Supreme Court of Texas.

June 16, 1891.

Commissioners' decision. Section A. Appeal from district court, Grayson county; H. O. HEAD, Judge.

Action brought by J. M. Cullers against the Missouri Pacific Railway Company for damages from fire. Plaintiff obtained judgment. Defendant appeals. The second instruction asked for by the defendant was as follows: "if you believe that the property in question was set on fire by the prairie fires which had been burning on the preceding day and night, and that this fire, after having apparently gone out, was revived by a strong wind on the day in question, and carried to the property, and caused its destruction instead, you should find for defendant. There is no competent evidence that such fire was communicated by defendant's engines, nor is it material for the jury to consider whether or not it was so caused under the circumstances. If this fire, and not one freshly set out by the engines which approached Cale switch just before the destruction of the hay, caused the damage, plaintiff is not entitled to recover."

R. C. Foster and A. E. Wilkinson, for appellant. W. W. Wilkins and Brown & Bliss, for appellee.

MARR, J.

"Appellee, J. M. Cullers, filed this suit against appellant in the district court of Grayson county on March 4, 1887, and by amendment filed October 28, 1887, set up that on November 21, 1885, defendant negligently allowed sparks and fire to escape from its engine, which fire caught and destroyed the following property, to-wit: One portable engine, valued at $500; one hay-press, valued at $400; one hay-press, valued at $250; one mower, valued at $85; one mower, valued at $70; one derrick and hay loader, valued at $50; six bundles hay wire, valued at $15; one sickle grinder, valued at $10; two dozen hay forks, valued at $6; one rubber belt, valued at $30; 4,500 bales of hay, valued at $1,600; one hay shed, valued at $200; one house and kitchen, valued at $200; and one stable, valued at $50; all of which property was located in the Indian Territory, and was reasonably worth, at the time and place of its destruction, in the aggregate, the sum of $3,666. That certain portions of the hay machinery and fixtures were owned by appellee, G. T. Black, and H. C. Lavo, individually, but that it was used in the partnership business of the firm, consisting of appellee, Black, and Lavo, which said firm was engaged at the time in the hay business; and that the hay belonged to them jointly. Appellee and Lavo were citizens of the county of Grayson, Tex. Black was a citizen and member of the tribe of the Chickasaw Indians. Black and Lavo, for valuable considerations, had transferred their interest in the claim against the appellant for the destruction of said property to appellee, and had authorized him to sue therefor in his own name. The trial before a jury on September 19, 1888, resulted in a verdict and judgment in favor of appellee for the sum of $4,519.78, of which amount appellee remitted the sum of $100 on November 12, 1888. From this judgment appellant has perfected its appeal to this court." Black transferred his claim to plaintiff to aid in the payment of the debts of the firm, which Cullers had partly paid and assumed the balance.

The assignments of error present several questions which require a decision thereof by this court. The first and second assignments, relating to the sufficiency of the evidence in law to support the verdict of the jury, and the fourth assignment, based upon the refusal of the court to allow the second instruction requested by the defendant, and dependent for support upon the nature of the evidence, will be postponed until we have determined the other questions presented by the appellant for our consideration. Summarized, the other points contended for by appellant's counsel are: That the court erred in refusing to instruct the jury as requested by appellant, to the following effect: First. That Black, being a member of an Indian tribe, and an Indian himself, cannot sue, nor, by assignment of whatever right of action he might have elsewhere, authorize or confer upon plaintiff the right to sue in the courts of this state, and therefore plaintiff cannot recover as to so much of the property destroyed as originally belonged to Black. Second. In refusing to charge that the court below had no jurisdiction of controversies arising in the Indian Territory between Indian citizens and citizens of the United States, the defendant being a citizen of Missouri; and that a citizen of an Indian nation cannot transfer his claims for such damages to a citizen of the state of Texas, so as to enable the latter to maintain the suit thereon in the courts of this state. Third. In refusing to charge that, in any event, the plaintiff could not recover damages for the destruction of "the houses, stables, and other real property situated on lands of the Choctaw Indians, and belonging to a member of that tribe:" and that nothing should be allowed "by reason of the burning of the dwelling-house and stable mentioned in the petition." Fourth. In refusing "to instruct the jury [as requested in the fifth instruction] that plaintiff, having shown no right to cut or put up the hay for the loss of which he sues, on the lands of the Choctaw Nation, is not entitled to recover anything by reason thereof."

The plaintiff, J. M. Cullers, as well as Lavo, is a citizen of Texas and of the United States, but Black is a citizen of the Chicaksaw Nation, and the property destroyed was at the time in the territory of the Choctaw Nation. It will thus be seen that the plaintiff himself is under no disability to sue in our courts, unless it be that the fact that a part of his right to recover, being derived from the Indian, Black, imparts to him a partial disability to that extent. But it seems to us that even then the question would not be one of the personal disability of the plaintiff to sue, but would depend upon the right of Black to assign his claim. If he could do this, then undoubtedly plaintiff, as his assignee, could maintain the suit on the claim, whether Black could have done so originally or not. The plaintiff is entirely free from any disability which, under the law, would deny him a standing in the courts if he possesses otherwise a right of action. There is no question of "comity" in such case. Ror. Int. St. Law, p. 155. If, however, it were necessary for us to decide the question, we think we would have little difficulty in holding that an Indian, like Black, is a "person" within the meaning of our state constitution and laws, and is thereby guarantied the right of redress for injuries done to him "in his person, property, or reputation." If he is not a person, then what is he? Even the plea of an alien enemy has been denounced by our courts as an "odious plea," though it must be sustained if timely interposed. Bishop v. Jones, 28 Tex. 294. Every day alien citizens of friendly nations are allowed to sue in our courts nemine dissentiente. We should not hesitate to hold that an Indian—certainly a civilized Indian —is entitled to a redress of wrongs through our state courts. It is not a question of comity, but of right given by law, supposing the court otherwise to have jurisdiction of the controversy. Swartzell v. Rogers, 3 Kan. 377; Wiley v. Keokuk, 6 Kan. 94; Wiley v. Man-a-to-wah, Id. 111; 10 Amer. & Eng. Enc. Law, p. 440, note 5; Dicey, Parties, pp. 1, 2; Gho v. Julles, 1 Wash. T. 325; Cooley, Torts, p. 35. The federal courts, by generally deciding that an Indian is neither "an alien" nor a "citizen" until naturalized or admitted to citizenship, necessarily deprived those courts of jurisdiction over controversies between Indians and citizens of one of the states of the Union, whenever the jurisdiction is dependent upon the status of the parties. This does not apply to the state courts. But in the present case there was no plea in abatement or special exception to the disability of the plaintiff supposed to result from a supposed disability affecting Black's right to sue himself in person or through another; therefore the question is waived anyhow by the pleadings of the defendant. It may be, however, that the right of Black to assign the claim, and thus invest plaintiff with the ownership thereof, as well as the right of the plaintiff to recover damages done to such of the property as defendant contends was real estate, and, if so, was not owned by any of the parties, is sufficiently raised and presented by the pleading of the general issue which, we think, throws on the plaintiff the burden of showing at least prima facie his right to the property destroyed or to the damages done thereto. Before determining this branch of the case, we deem it not inappropriate to here dispose of the question raised by the defendant and argued by counsel on both sides,— that so much of the action as seeks to recover damages for the destruction of the house and kitchen and stable is purely local and not transitory, and therefore arose out of the jurisdiction of this state, and, as a consequence, will not, like a transitory action, follow the person of the wrong-doer, so as to allow the courts of another jurisdiction to entertain jurisdiction thereof. To all intents and purposes, so far as being sued is concerned, the appellant is a resident of this state and subject to its laws, and to the jurisdiction of its courts. Its road extends into and through the county in which it was sued, and it has an agent and representative there. The court below had "jurisdiction over the subject-matter," and therefore, by express provision of law, the defendant was amenable to the process of that court, and liable to be sued in that county. Sayles' Civil St. art. 1198, § 21b, and section 21. This is unquestionably correct as to so much of the cause of action as is of a transitory nature. Dicey, Parties, p. 67. But while this is true as to transitory...