Ricker v. Shoemaker
| Decision Date | 08 May 1891 |
| Parties | RICKER <I>et al.</I> v. SHOEMAKER. |
| Court | Texas Supreme Court |
Appeal from district court, Dallas county; GEORGE N. ALDREDGE, Judge.
Cobb & Avery, for appellants. Brown, Watts & Hall, for appellee.
This action was brought by the appellee to recover of the Gulf, Colorado & Santa Fe Railway Company, or of Ricker, Lee & Co., the appellants, damages for personal injuries. The petition alleged that the plaintiff was employed by the railroad company in constructing a trestle on an extension of its line in Dallas county; that he was working under the immediate orders of one Greenfield, who was a representative of the company, with power to employ and discharge hands; and that, while he was so employed, and while he was upon a pile-driver used in constructing the work, through the negligence of Greenfield in failing to fasten a guy-rope at the proper time he was thrown to the ground and injured. It was also alleged, in substance, that Ricker, Lee & Co. were at the time contractors under the railroad company for the construction of its work, but that the contract bound them to do the work under the direction and control of the company's engineer. But the petitioner further averred that, if he was mistaken in alleging that the work was to be done under the control of the company, and if Ricker, Lee & Co. were independent contractors, then Greenfield was their representative, and they were liable for the injury. There was a prayer for judgment against the railroad company, and also a prayer for a recovery against Ricker, Lee & Co. in the event the court should hold that the railroad company was not liable. The defendants, Ricker, Lee, and Owen, who constitute the firm of Ricker, Lee & Co., were alleged to reside in Galveston county; but Lee was alleged to be in Galveston county, and Owen in Collin county, at the time the petition was filed. Citations were prayed for to both counties. Ricker, Lee & Co. filed a plea to the jurisdiction, claiming their privilege of being sued in Galveston county, alleging that each of them resided in that county, and that neither resided in Dallas county; and that they were independent contractors under the Gulf, Colorado & Santa Fe Railway Company, and that the latter was not liable for the wrongs alleged in the plaintiff's petition. It was also alleged that the railroad company was fraudulently made a party defendant for the purpose of conferring jurisdiction, as to the defendants, upon the district court of Dallas county. The plea was properly supported by affidavit. An exception to the plea was sustained by the court, and appellants assign that ruling as error.
Counsel for appellee maintain that the cause of action alleged in the petition was a "trespass," within the meaning of that exception, contained in article 1198 of the Revised Statutes, which provides, in effect, that when the foundation of a suit is some crime, offense, or trespass for which a civil action in damages will lie, the suit may be brought "in the county where the crime, offense, or trespass was committed." The construction of the word "trespass" in that provision of the statute came before us for consideration in the case of Hill v. Kimball, 76 Tex. 210, 13 S. W. Rep. 59, and we there held, that the word was not used in its most restrictive sense, and as applying only to actions for injuries inflicted by force upon the person or property of another, but that it would embrace actions of trespass on the case as known to the common law. In the case cited, the alleged wrong consisted in a bloody assault by the defendant upon two negroes in presence of the plaintiff's wife; and it was averred that by reason of the mental excitement of the wife, caused by the defendant's conduct, a miscarriage resulted. It was held that the cause of action was a "trespass" within the meaning of the statute, and that the suit was properly brought in the county where the trespass was committed. Between that and the case now under consideration there is a marked distinction. There the act was not alleged to be done with the intent to injure the plaintiff's wife, but it was an act committed. In the present case the alleged wrong consists in the negligent omission by the defendants' representative to do an act which it was his duty to do. Is this a "trespass" within the meaning of the statute? We think not. The words, "where the crime, offense, or trespass was committed," indicate that the word "trespass" was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do a duty. There are expressions in the opinion in the case of Hill v. Kimball, supra, which would tend to give the exception in the statute we are now considering a wider scope; but when that case was under consideration the distinction we now draw did not present...
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J. A. & E. D. Transport Co. v. Rusin
...This concept of active and passive negligence was introduced into the venue law of Texas by the case of Ricker, Lee & Co. v. Shoemaker, 1891, 81 Tex. 22, 16 S.W. 645, decided long before the automobile came into common In connection with this distinction and its place in the substantive law......
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Adams v. Slattery
...of Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Long-Bell Lumber Co. v. Bynum, 138 Tex. 267, 158 S.W.2d 290; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d Judgment of the Court of Civil Appeals reversing and remanding the cau......
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Jackson v. McClendon
...to perform a duty does not amount to a trespass within the meaning of the statute (Subdivision 9, Article 1995). Ricker, Lee & Co. v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Connor et al. v. Saunders, 81 Tex. 633, 17 S.W. To constitute a trespass there must be an affirmative act as distinguishe......
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Long v. Long
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