St. Louis, B. & M. Ry. Co. v. McLean

• Decision Date: 20 June 1923
• Docket Number: (No. 437-3814.)
• Citation: 253 S.W. 248
• Parties: ST. LOUIS, B. & M. RY. CO. v. McLEAN et al.
• Court: Texas Supreme Court

Page 248

253 S.W. 248

ST. LOUIS, B. & M. RY. CO. v. McLEAN et al.

(No. 437-3814.)

Commission of Appeals of Texas, Section A.

June 20, 1923.

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

Action by Hester McLean, individually and as administratrix of the estate of W. F. McLean, deceased, against the St. Louis, Brownsville & Mexico Railway Company, and the Texas Mexican Railway Company, and W. G. McAdoo, Director General of Railroads, for whom J. C. Davis, Agent of the United States Railroad Administration, was substituted. From a judgment (241 S. W. 1072), affirming a judgment against defendant Davis, he brings error. Reversed and remanded.

E. H. Crenshaw, Jr., of Kingsville, and J. D. Todd, of Corpus Christi, for plaintiff in error Davis, Agent in the operation of the St. Louis, B. & M. Ry. Co.

H. R. Sutherland, of Corpus Christi, and Dodson & Smith, of Laredo, for plaintiff in error Davis, Agent in the operation of the Texas Mexican Ry.

Boone, Pope & Savage, of Corpus Christi, for defendants in error.

GERMAN, J.

On January 25, 1918, the railroad lines of the St. Louis, Brownsville & Mexico Railway Company and the Texas Mexican Railway Company were both under federal control, and were being operated by W. G. McAdoo, Director General of Railroads. The Texas Mexican Railway Company owned a line of railroad from Corpus Christi to Robstown, over which its passenger trains were operated, and under some kind of agreement the passenger trains of the St. Louis, Brownsville & Mexico Railway Company were operated over this line between the same points. On that date W. F. McLean was conductor in charge of a passenger train of the St. Louis, Brownsville & Mexico Railway Company. About 7:20 a. m. of that day, while in the act of stopping, or immediately after having stopped, at the station of Clarkwood, the train on which McLean was conductor was run into from the rear by a passenger train of the Texas Mexican Railway Company, and McLean was instantly killed. He left surviving him his widow, Hester McLean, a minor daughter, Helen Josephine McLean, and his parents, L. B. McLean and wife.

December 26, 1918, Mrs. Hester McLean, individually and as administratrix of the estate of W. F. McLean, for the benefit of herself and her minor child, filed suit against the two railway companies and the Director General of Railroads for damages. The case, as now presented here, was tried on plaintiff's fourth amended original petition, in which J. C. Davis, Agent of the United States Railroad Administration, took the place of the former Director General of Railroads. L. B. McLean and wife were made defendants. It was alleged that at the time the said McLean was killed he was engaged in interstate commerce.

Numerous acts of negligence were alleged on the part of the St. Louis, Brownsville & Mexico Railway Company, and also on the part of the Texas Mexican Railway Company, some acts as to one and some as to the other, and on the part of the Director General of Railroads in the operation of both trains.

Plaintiff in error James C. Davis filed two answers. As Director General and Agent in respect of the operation of the St. Louis, Brownsville & Mexico Railroad he pleaded the general issue and contributory negligence on the part of McLean, claimed to be the sole cause of the accident. As Director General and Agent in respect of the operation of the Texas Mexican Railway he alleged that McLean was solely in the employ of the Director General in respect of the operation of the St. Louis, Brownsville & Mexico Railroad, and that the relation of master and servant did not exist between him and the Director General in respect of the operation of the Texas Mexican Railway; that McLean was guilty of contributory negligence, which was a complete bar to any recovery. On motion the two railroad companies were dismissed from the suit. A trial before a jury on special issues resulted in a judgment against plaintiff in error in the sum of $29,750, which was prorated between Mrs. McLean, the minor daughter, and L. B. McLean and wife. This judgment was affirmed by the Court of Civil Appeals for the Fourth District. 241 S. W. 1072.

It appears that from the beginning defendant in error has proceeded upon the theory that the Director General of Railroads held the position of directing head of all railroads and railway systems, considered as one entity, and as such could be sued in his general capacity as a representative of the government, without respect to any particular railroad or carrier operated by him; and that all employés on the various railroads were his employés and related to each other and to him as common servants of a common master. To put the matter more concretely: It is her contention that the Director General of Railroads in his operation of the Texas Mexican Railway sustained exactly the same relation to McLean as he did in his operation of the St. Louis, Brownsville & Mexico Railroad; that there being no recognition of separate railroads or carriers in the matter of operation, liability was therefore fixed by the relation of McLean to the Director General as the directing head of all railroads, and not by the relation sustained by the Director General to either the St. Louis, Brownsville & Mexico Railroad or the Texas Mexican Railway.

Plaintiff in error has been equally insistent in his contention, that the acts of Congress authorizing federal control of railroads fixed the legal liability of the Director General in the operations of railroads as separate entities, the same as before federal control; and the Director General in respect of the operation of one particular railroad was a different party from the Director General in respect of the operation of another railroad, so far as liability growing out of operations was concerned. In other words, it is his contention that the Director General, in respect of the operation of the St. Louis, Brownsville & Mexico Railroad, sustained to McLean an entirely different relation than that sustained by the Director General in respect of the operation of the Texas Mexican Railway.

This presents the question of great importance in the case. Its proper determination will not only control the result of this appeal, but will have much to do with the rights of the parties on another trial.

From the pleadings of defendant in error it is apparent that she is seeking to recover under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), upon the theory that there was no distinction between the employés in charge of the different trains, but that they were each and all alike servants of the Director General. If the contention of plaintiff in error is correct, then she would have no right to proceed under the Employers' Liability Act against the Director General in respect of the operation of the Texas Mexican Railway, but only on the basis of negligence; but she could proceed under the Employers' Liability Act against the Director General in respect of the operation of the St. Louis, Brownsville & Mexico Railroad. Under the first proceeding, contributory negligence would be a complete bar to a recovery, but under the second it would only result in diminishing the damages, in the event of a recovery. The question therefore is of controlling importance, and especially in view of the fact that the trial court submitted to the jury the following special issue:

"Was the Director General of Railroads, through his servants and employés, guilty of any of the acts of negligence in the operations of the trains as charged in plaintiff's fourth amended original petition?"

In our judgment the Supreme Court of the United States in the case of Missouri Pacific R. Co. v. Ault, 256 U. S. 554, 561, 41 Sup. Ct. 593, 65 L. Ed. 1087, has determined this precise question; but, as is frequently the case, counsel for both parties insist that it is to be construed as favorable to each of their contentions. We do not deem it necessary to fully review the Acts of Congress, the orders of the President, and the orders of the Director General, establishing and relating to federal control of railroads, but believe the quotations we are making from the case just referred to and other cases will sufficiently explain the purpose of the act and make clear the conclusion we have reached.

Section 10 of the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115¾j), provides:

"That carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. * * * But no process, mesne or final, shall be levied against any property under such federal control."

By General Order No. 50 of the Director General, dated October 28, 1918, it is further provided:

"It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claims for death or injury to person or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suits, or proceedings but for federal control might have been brought against the carrier company shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise."

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