El Paso & S. W. Co. v. La Londe

• Decision Date: 05 April 1916
• Docket Number: (No. 9292.)
• Citation: 184 S.W. 498
• Parties: EL PASO & S. W. CO. v. LA LONDE.
• Court: Texas Supreme Court

Page 498

184 S.W. 498

EL PASO & S. W. CO. v. LA LONDE.

(No. 9292.)

Supreme Court of Texas.

April 5, 1916.

Action by Angela La Londe against the El Paso & Southwestern Company. A judgment for the plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 890), and the defendant applies for writ of error. Application refused, and motion for rehearing overruled.

Hawkins & Franklin and W. M. Peticolas, all of El Paso, for applicant. Wallace & Gardner, of El Paso, opposed.

On Motion for Rehearing.

PER CURIAM.

Motion for rehearing overruled.

HAWKINS, J. (concurring).

The course of reasoning by which my conclusions herein have been reached is, in several respects, so different from that shown by the opinion of the Court of Civil Appeals in this cause (173 S. W. 890) that I feel in duty bound to state my individual views herein, although, with some exceptions, the rule in this court has been not to write in granting or in refusing applications for writs of error.

This action for damages for the killing of La Londe, on April 21, 1912, in New Mexico, by one of plaintiff in error's trains, was instituted in a Texas court by his widow as temporary administratrix and personal representative of the estate of the decedent.

Trial before a jury resulted in verdict and judgment in her favor for $13,750, which judgment was affirmed by our Court of Civil Appeals for the Eighth Supreme Judicial District (Civ. App.) 173 S. W. 890. The railway company applied for a writ of error, which this court refused, and now prays for a rehearing.

It is contended by the railway company that the suit cannot be maintained by the Texas temporary administratrix in the absence of allegation and proof of orders of the probate court extending the period of administration. Under such circumstances such orders will be presumed. Williams v. Bank, 91 Tex. 651, 45 S. W. 690. Moreover, the record does not show that the right of the plaintiff to sue in that capacity was challenged by a sworn plea, as provided by R. S. of Texas 1911, art. 1906, subd. 2.

Complaint is made by the railway company of the refusal of the trial court to submit to the jury the provisions of the Constitution and statutes of New Mexico which were admitted in evidence before the court to enable the court to determine whether they or any of them govern or affect the rights of the parties, and to instruct the jury accordingly. In that refusal there was no error. Andrews v. Hoxie, 5 Tex. 171; Willard v. Conduit, 10 Tex. 213.

The temporary administratrix relies upon the act of February 21, 1891 (Laws 1891, c. 49), the act of February 17, 1893 (Laws 1893, c. 28), and section 16 of article 20 of the Constitution of New Mexico, in turn, while the railway company relies upon article 3213 of the Compilation of 1897, and section 4 of article 22 of said Constitution, all as shown below.

Their history, as I glean it, is as follows:

The original act of 1882 (chapter 61) dealt, in section 1, with damages for injuries resulting in death when caused by the wrongful acts of common carriers, their agents, servants, and employés, while engaged in operating locomotives, trains, stagecoaches and other public conveyances, and, in sections 2 and 3, with damages for such injuries when caused by wrongful acts of corporations and persons other than common carriers.

Said section 1 reads thus:

"Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employé, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stagecoach or other public conveyance, while in the charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stagecoach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employé, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stagecoach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand ($5,000.00) dollars, which may be sued and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not of a negligent defect or insufficiency."

Said section 1 was carried into the Compilation of 1884 as article 2308, and into the Compilation of 1897 as article 3213, and appears to be still in force, unless and except as repealed, amended, or rendered inoperative by said act of 1891, said act of 1893, and said section 16 of article 20 of the Constitution.

If article 3213 is applicable in this case, its unquestionable effects are: (a) Arbitrarily to fix, at $5,000, the amount of the recovery, such fixed amount being in the nature of a penalty rather than in the nature of compensatory damages; and (b) to deny to defendant in error the right to maintain the suit in the capacity in which she sues herein.

Said sections 2 and 3 of said act of 1882 became sections 2309 and 2310 of the Compilation of 1884, and were amended by "An act to amend sections 2309 and 2310 of the Compiled Laws of New Mexico of 1884," approved February 21, 1891. Said act of 1891 authorizes, in general terms, recovery of damages for injuries resulting in death; it fixes no limit on the amount to be recovered; it requires that actions thereunder be in the names of personal representatives of the decedent; but that amendment, it seems, does not relate to common carriers, and does not repeal said article 3213. Romero v. Railroad, 11 N. M. 684, 72 Pac. 38, in which case the Supreme Court of the territory of New Mexico held said article 3213 applicable, although the injuries of the decedent, who was not an employé, were inflicted in June, 1902.

Said act of February 17, 1893, "an act for the protection and relief of railroad employés and for other purposes," provides:

"Every corporation operating a railway in this territory shall be liable in a sum sufficient to compensate such employé for all damages sustained by any employé of such corporation, the person injured or damaged being without fault on his or her part, occurring or sustained in consequence of any mismanagement, carelessness, neglect, default or wrongful act of any agent or employé of such corporation, while in the exercise of their several duties, when such mismanagement, carelessness, neglect, default or wrongful act of such employé or agent could have been avoided by such corporation through the exercise of reasonable care or diligence in the selection of competent employés, or agents, or by not overworking said employés or requiring or allowing them to work an unusual or unreasonable number of hours," etc.

It also provides:

"Whenever the death of an employé shall be caused under circumstances from which a cause of action would have accrued under the provisions of the two preceding sections, if death had not ensued, an action therefor shall be brought in the manner provided by section 2310 of the Compiled Laws of New Mexico, as amended by chapter XLIX of the Session Laws of 1891 of New Mexico, and any sum recovered therein shall be subject to all of the provisions of said section 2310 as so amended."

While said act of 1893 relates to common carriers, its operation is restricted to certain designated classes of cases, involving either want of care in the selection of employés or agents, or overworking them. Neither the pleading nor the evidence brings this case within its purview; consequently, at least for the purposes of this case, it neither controls nor affects said article 3213.

Said section 4 of article 22 of the Constitution is as follows:

"All laws of the territory of New Mexico in force at the time of its admission into the Union as a state, not inconsistent with this Constitution, shall be and remain in force as the laws of the state until they expire by their own limitation, or are altered or repealed; and all rights, actions, claims, contracts, liabilities and obligations, shall continue and remain unaffected by the change in the form of government."

Section 16 of article 20 of the Constitution, adopted in 1911, provides:

"Every person, receiver or corporation owning or operating a railroad within this state shall be liable in damages for injury to, or the death of, any person in its employ, resulting from the negligence, in whole or in part, of said owner or operator or of any of the officers, agents or employés thereof, or by reason of any defect or insufficiency, due to its negligence, in whole or in part, in its cars, engines, appliances, machinery, track, roadbed, works or other equipment.

"An action for negligently causing the death of an employé as above provided shall be maintained by the executor or administratrix for the benefit of the employé's surviving widow or husband and children; or if none, then his parents; or if none, then the next of kin dependent upon said deceased. The amount recovered may be distributed as provided by law. Any contract or agreement made in advance of such injury with any employé waiving or limiting any right to recover such damages shall be void."

It...