Pulom v. Jacob Dold Packing Co.

• Decision Date: 04 November 1910
• Docket Number: 817.
• Citation: 182 F. 356
• Parties: PULOM v. JACOB DOLD PACKING CO.
• Court: U.S. District Court — Western District of Texas

182 F. 356

PULOM v. JACOB DOLD PACKING CO.

No. 817.

United States Circuit Court, W.D. Texas, San Antonio Division.

November 4, 1910

[Copyrighted Material Omitted]

Will A Morris, Thad T. Adams, and A. R. Hopkins, for plaintiff.

Bertrand & Arnold, for defendant.

MAXEY District Judge (after stating the facts as above).

It is clear that by the common law no action would lie in favor of the surviving wife. In The Harrisburg, 119 U.S. 204, 7 Sup.Ct. 142 (30 L.Ed. 358), Mr. Chief Justice Waite, as the organ of the court, used this language:

'It was held by this court on full consideration in Insurance Company v. Brame, 95 U.S. 756 (24 L.Ed. 580), that by the common law no civil action lies for an injury which results in death.' 8 Am. & Eng.Enc.Law, 854, 855; Hendrick v. Walton, 69 Tex. 192, 6 S.W. 749.

We must therefore look to the statute to determine whether the plaintiff has a cause of action to recover damages of the defendant for the death of her husband resulting from the negligence of the defendant's agent, the wagon driver.

The provisions of the Revised Statutes of Texas (1895) as applicable to the present suit, read as follows:

'Art. 3017. 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, 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. * * * (2) When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another.'

It will be observed that the plaintiff by the allegations of her petition attributes the death of her husband to the act of the defendant's agent or servant, who was driving the wagon when the injuries causing the death were inflicted. The Supreme Court of Texas has ruled that, although a private corporation is a 'person' within the meaning of the second subdivision of the statute and may be held liable in damages for a death caused by its own wrongful act, there is no liability when the death results from the acts or omissions of its agents and servants. Referring to the clause of the statute now under consideration, it was said by Mr. Justice Williams, speaking for the court, in Lipscomb v. Railway Company, 95 Texas, 18, 64 S.W. 925 (55 L.R.A. 869, 93 Am.St.Rep. 804), that:

'The second subdivision gives an action when the death is caused by the wrongful act, negligence, unskillfulness, or default of another. It is held in the case of Hendrick v. Walton, 69 Tex. 192 (6 S.W. 749), upon full consideration, that this gives no action against the principal or master for a death caused by the act of the agent or servant; and although it is held in Fleming v. Texas Loan Agency, 87 Tex. 239 (27 S.W. 126, 26 L.R.A. 250), that under this subdivision a corporation may be made responsible for a death caused by its own act or omission, this in no way changes the rule stated in the former case. The only contention here is that the express company should be held liable for the act of its servants. The action must stand or fall by the terms of the statute, which cannot be extended to include cases omitted from its provisions. ' Railway Company v. Freeman, 97 Tex. 394, 79 S.W. 9; Parker v. Dupree, 28 Tex.Civ.App. 341, 67 S.W. 185.

The decisions of the Supreme Court of this state render it quite evident that the present suit cannot be maintained under the second subdivision of article 3017. May it be sustained under the first subdivision? This subdivision authorizes suit for injuries resulting in death against 'any railroad, steamboat, stagecoach, or other vehicle for the conveyance of goods or passengers. ' The agencies specifically enumerated-- railroads, steamboats, and stagecoaches-- are clearly embraced within the terms of the law. But is a wagon, appropriated to private in contradistinction to public uses, included in the words 'other vehicles for the conveyance of goods or passengers'? If yea, the present suit is well brought; but, if the question should receive a negative response, the demurrer ought to be sustained. To give an affirmative reply to the question would be to disregard one of the recognized and accepted rules for the construction of statutes, to wit:

'In the enumeration of particulars, general and comprehensive terms are sometimes used, in the construction of which reason and good sense require that, if you would not violate the intention of the writer, their

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