El Paso & N. E. Ry. Co. v. Gutierrez
| Citation | 111 S.W. 159 |
| Parties | EL PASO & N. E. RY. CO. v. GUTIERREZ. |
| Decision Date | 27 May 1908 |
| Court | Court of Appeals of Texas |
Action by Enedina Gutierrez against the El Paso & Northeastern Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.
Hawkins & Franklin, for plaintiff in error. F. G. Morris, for defendant in error.
This is a suit for damages arising from the death of Antonio Gutierrez, instituted by his widow in the capacity of administratrix of his estate. In addition to general and special exceptions and other defenses, plaintiff in error alleged that Antonio Gutierrez was killed in New Mexico on June 22, 1906; that he was a resident citizen of the Republic of Mexico; that defendant in error was not a bona fide resident of Texas, as alleged by her, but was in El Paso, Tex., merely to attempt to give jurisdiction to the courts of El Paso county. A statute of New Mexico on the subject of personal injury and death claims in New Mexico was fully set up in the answer, in which statute it was provided that the person injured or claiming damages for the death of another shall, within 90 days after the injuries were received, make and serve upon the guilty person or corporation a certain affidavit, detailing various and sundry things, and providing that no suit should be brought after a year from time of the injuries, and then only in the district court of the territory in which the injuries occurred. Exceptions to that portion of the answer were sustained by the trial court, and that action is the subject of the first assignment of error. This court has heretofore adverted to the provisions of that law as being so unreasonable and outrageous as to deserve the condemnation of every civilized community, and has refused to be governed by it, at least in its application to the citizens of other states, and that refusal has met with the approval of the Supreme Court of Texas. Railway v. Sowers (Tex. Civ. App.) 99 S. W. 190. We adhere to that decision, and approve the action of the court in striking out that part of the answer embodying its provisions. Since that decision, and since the death for which damages are herein claimed occurred, the Congress of the United States has repealed the law in question, and few, indeed, will be found to regret its taking off.
Defendant in error instituted this suit as administratrix of the estate of her deceased husband, alleging that they had no children, and her legal capacity to sue was not attacked, nor any defect of parties set up in the answer. Article 3023, Rev. St. 1895, authorizes suits of this character by an executor or administrator under certain circumstances, which may have existed in this case. Her authority to sue was not questioned in the lower court, and cannot be attacked here.
The fifth assignment of error is too general for consideration. It is not followed by a proposition.
The trial court submitted the case to the jury upon issues founded upon the federal employer's liability act (Act Cong. June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1907, p. 891]...
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Gutierrez v. El Paso & N. E. R. Co.
...Action by Enedina Gutierrez against the El Paso & Northeastern Railroad Company. There was a judgment of the Court of Civil Appeals (111 S. W. 159) reversing a judgment for plaintiff, and she brings error. Reversed, and judgment of trial court F. G. Morris, for plaintiff in error. Hawkins &......
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El Paso Northeastern Railway Company v. Enedina Gutierrez
...that part of the defendant's answer which pleaded the territorial act and plaintiff's failure to present her claim in accordance with it. 111 S. W. 159. Thereupon the plaintiff took the case to the supreme court of Texas by writ of error, and that court held that the case was controlled by ......