Saxon v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 09 June 1932
• Docket Number: No. 1409-5601.,1409-5601.
• Citation: 50 S.W.2d 1095
• Parties: SAXON v. ATCHISON, T. & S. F. RY. CO.
• Court: Texas Supreme Court

50 S.W.2d 1095

SAXON v. ATCHISON, T. & S. F. RY. CO.

No. 1409-5601.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Mrs. Bertha Moore, administratrix of the estate of J. W. Moore, deceased, against the Atchison, Topeka & Santa Fé Railway Company, in which Mack Saxon, as ancillary administrator and personal representative in Texas, intervened. Judgment for intervener was reversed, and judgment rendered for defendant by the Court of Civil Appeals, 21 S.W.(2d) 686, and intervener brings error.

Judgments of Court of Civil Appeals and district court both reversed and cause remanded to district court. Conforming to opinion of United States Supreme Court, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. ___, which reversed judgment (Tex. Com. App.) 36 S.W. (2d) 228, and 38 S.W.(2d) 775, which reversed judgment (Civil Appeals) 21 S.W.(2d) 686.

Winbourn Pearce and Walker Saulsbury, both of Temple, for plaintiff in error.

Turney, Burgess, Culwell & Pollard, of El Paso, for defendant in error.

CRITZ, J.

This case was presented in the district court of El Paso county, Tex., by Mack Saxon, administrator, etc., for J. W. Moore, deceased, for damages on account of said Moore having been killed while in the discharge of his duties as head brakeman for the defendant in error, Atchison, Topeka & Santa Fé Railway Company. Trial in the district court with a jury resulted in a verdict and judgment for Saxon. On appeal to the Court of Civil Appeals, that judgment was reversed and judgment rendered for the railway company. 21 S.W.(2d) 686. Saxon prosecuted writ of error to this court, which court, on the recommendation of this Section of the Commission, reversed the judgment of the Court of Civil Appeals and affirmed that of the district court. 36 S.W.(2d) 228; 38 S.W.(2d) 775.

As shown by the original opinion rendered herein by this Section of the Commission, this action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), and therefore the railway company prosecuted an appeal to the Supreme Court of the United States. On final hearing in that court the judgment of this court was reversed, and the cause remanded to this court for further proceedings not inconsistent with the opinion of the United States Supreme Court. 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. ___. The mandate from the United States Supreme Court is now before us and must be obeyed.

After the happening of the above events, counsel for the plaintiff in error for the first time calls our attention to the fact that when this cause was filed and presented to the Court of Civil Appeals the brief of the railway company, appellant in that court, contained no assignments of error. Saxon therefore contends that the Court of Civil Appeals was without jurisdiction to examine into or pass on any matters or decide any question not constituting fundamental...