El Paso & S. W. Ry. Co. v. Kelly

• Decision Date: 09 November 1904
• Citation: 83 S.W. 855
• Parties: EL PASO & S. W. RY. CO. et al. v. KELLY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 855

EL PASO & S. W. RY. CO. et al. v. KELLY.^*

Court of Civil Appeals of Texas.

November 9, 1904.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Ellis R. Kelly against the El Paso & Southwestern Railway Company and the El Paso Terminal Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Patterson & Buckler, for appellants. P. H. Clarke, for appellee.

NEILL, J.

This is an appeal from a judgment by default of $9,000, rendered on the 2d day of February, 1904, against appellants. On the 10th day of February they filed a motion to set aside the judgment, which motion was, by leave of the court, amended on the 19th day of said month. The motion as amended was heard and overruled on the 1st of March, 1904. Then defendants appealed from the judgment.

All the assignments of error are predicated upon the action of the court in overruling the motion. They raise the following questions: (1) Is plaintiff's petition sufficient in law to support a judgment by default? (2) Is the citation and return thereon sufficient to give the court jurisdiction of the persons of defendants? (3) Do the facts disclosed by the motion, and evidenced on its hearing, show a good excuse for defendants' failure to appear and answer? And (4) does the motion disclose a meritorious defense to plaintiff's action? If either of the two first questions should receive a negative answer, it will be unnecessary to consider the other two. For if either the petition or service is so defective as not to support a judgment by default, the judgment, on assignment of either ground, should be reversed on writ of error. Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655. And whatever is of itself a sufficient cause for reversal on appeal or error is of itself a good ground for setting aside the judgment on motion, if seasonably made in the trial court.

The questions stated will now be considered in the order presented: (1) The suit was brought by appellee against appellants to recover $25,000 damages for personal injuries alleged to have been occasioned by the latter's negligence. The petition, after stating the names of the defendants, alleges they "are corporations duly incorporated as railway companies, operated by steam power, and, since long prior to their employment of plaintiff as hereinafter stated, so operate as copartners a certain line of railway whose eastern terminal is in the county and city of El Paso, Texas, running thence westward through said county to and beyond the boundary of said state, through the territory of New Mexico, and farther. Defendants have a local office, local agent, and depot in said county and city of El Paso." "Plaintiff, under contract whereby he was employed by defendants to work for them in his capacity of fireman, as later explained, was heretofore, to wit, on the 25th day of November, A. D. 1902, occupied as fireman of a certain steam shovel on the line of defendants' said copartnership railroad, and in said county of El Paso, when he sustained personal injuries under the circumstances and facts following: Said steam shovel consists of a large and intricately constructed steam engine, which, while capable of moving by its own steam along defendants' railroad track, also operates a large metal scoop that, by means of extensive and complicated machinery and applications of steam power, digs up and elevates earth in large quantities, and dumps the same into a freight or material car, to be hauled from one point to another, as desired, along defendants' said line of road. Plaintiff's duty as said fireman was to work as general attendant; among other things, to oil machinery of said shovel whenever ordered so to do by the engineer in charge of and operating the same. On the 25th day of said November plaintiff was occupied, under instructions, order, and supervision of said engineer, in oiling said machinery; the same—as was necessary for plaintiff's personal safety while so occupied —not being in motion when plaintiff had taken his proper and necessary position among said complicated machinery for oiling, and had proceeded in oiling the same; but before plaintiff had time to oil, as was commanded, and get away from his said position while oiling said machinery, the engineer in charge of said engine, and thus controlling said machinery, whose duty it was to look out for the safety of plaintiff while in said position, neglected and disregarded and omitted negligently said duty, and suddenly, without plaintiff being warned, or having any means of avoiding or of foreseeing danger to him, or the fact that said machinery was being put in motion, said engineer applied steam and put said machinery in violent motion, so that it caught, crushed, and mangled plaintiff's right foot at ankle and leg. All this was without fault or negligence on the part of plaintiff, and caused by the negligence of the engineer in authority over plaintiff, and, in a higher position as to skill, responsibility, not the fellow servant of plaintiff." "Defendants were also negligent in employing said engineer, who was incompetent and unskillful at time of said employment as such, and generally unfit and unreliable at said times and at all times hereinabove named, in said capacity; and this fact was known to defendants, or could have been ascertained by them by the use of reasonable diligence; and defendants were well informed and knew, at time of employment, and later in time for them to have averted said injury, of the said incapacity and unfitness, which were unknown to plaintiff until injured as aforesaid, and said unfitness and incapacity in, and negligence in the employment and retention in, said service of engineer, was a cause of said injury to plaintiff." The remaining part of petition shows more fully the nature and permanency of plaintiff's injuries and the elements of his damages. The contention of appellants is that, for the reason the petition alleges they are corporations and "operate as copartners a certain line of railway," etc., it is bad on general demurrer, because corporations are from their very nature, unless specially authorized by law, incapable of entering into and sustaining the relation of partnership with one another. It may be conceded as a general proposition that corporations, without special authority, cannot enter into an agreement of partnership, and, if they do that, as between themselves such an agreement cannot be enforced. But it does not follow that if they do enter into such an agreement, and, acting together under it, employ a servant to do work in furtherance of an enterprise they are jointly engaged in, and such servant while at work for them is injured by their negligence, they are not liable for the consequences of such negligence. When the sufficiency of a pleading is challenged by a general demurrer, every reasonable intendment from the allegations contained, taken as a whole, will be indulged. Telephone Co. v. Grimes, 82 Tex. 94, 17 S. W. 831. The petition, notwithstanding the allegation that defendants operate as copartners a certain line of railroad, specifically alleges that plaintiff was employed by both of them, and that in the discharge of the duties of his employment he was injured by their negligence. In view then of the rule stated as to the test of the sufficiency of a pleading when assailed by general demurrer, the allegation that defendants operate as copartners, etc., may be stricken out as surplusage (for it is utterly immaterial), and the petition states a good cause of action, certainly as against a general demurrer. To entitle him to a recovery it was not necessary, under his pleadings, for the plaintiff to show that the relation of partnership existed between the defendants. It was only essential for him to prove that they were joint tort feasors, and that his injuries were the consequence of their negligence. This could be shown under the allegations of the petition, whether they were partners or not. He only had to prove that he sustained the relation of employé to both of them, and that while in their employment he was injured by a negligent act of omission or commission chargeable to each. The judgment rendered, even when construed in connection with the petition, does not presuppose a partnership between the defendants, but is just such a judgment as is ordinarily rendered against two wrongdoers. We conclude, therefore, that plaintiff's petition is sufficient in law to support a judgment by default.

2. The original citation issued in this case, copies of which were served on each of defendants in the manner shown by sheriff's amended return hereinafter stated, is attacked upon the ground that it does not "state the date of the filing of the plaintiff's petition." By an order of the trial court the original citation, together with copies served on defendants, has been sent up with a record to this court for its inspection. Upon an examination of the citation, we concur with the trial court in its holding that such writ is not obnoxious to the objection urged. Our conclusion as to this matter is strengthened by the fact that the carbon copies, made at the same time that the original citations were struck off on the typewriter, show without question that plaintiff's petition was filed on the 4th day of June, A. D. 1903—the same date shown by the original; that when judgment was entered by default the trial judge inspected the original, and then determined that it stated on its face the date of the filing of plaintiff's petition; that he again examined it in considering the motion to set aside the judgment by default, and reached the same conclusion; and that it is shown by affidavit of plaintiff's counsel that he, at the time judgment was entered, as well as prior and subsequent to that time, carefully inspected the citation, and could detect no such defect in it as is contended for by appellants. This disposes of the...