St. Louis Southwestern Ry. Co. of Texas v. Turner

• Citation: 225 S.W. 383
• Decision Date: 30 October 1920
• Docket Number: (No. 8361.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TURNER.
• Court: Texas Court of Appeals

225 S.W. 383

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TURNER.

(No. 8361.)^*

Court of Civil Appeals of Texas. Dallas.

October 30, 1920.

Rehearing Denied November 27, 1920.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Suit by Era B. Turner against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins, of Dallas, and Crosby & Harrell, of Greenville, for appellant.

Clark & Sweeton, of Greenville, for appellee.

TALBOT, J.

Appellee sued the appellant to recover damages for personal injuries sustained by her on May 28, 1917, while a passenger on one of appellant's trains. She alleges that on said date she became a passenger upon appellant's train, known as the Lone Star Special, having boarded said train in Greenville, in Hunt county, for Ft. Worth, in Tarrant county, and that when the train entered the city of Ft. Worth, and before it arrived at the station in said city, appellee went to the dressing room of the chair car, and, while standing in front of the lavatory, the train on which she was riding collided with some other train, engine, or cars, or with something on the track, causing a violent jar, movement, and counter movement of the train, which threw her violently forward against the lavatory, her abdomen striking the lavatory with great violence, displacing her womb and ovary, and diseasing the same, from which injuries she immediately began to suffer pain, and continued to suffer until she was finally compelled to be operated on, in which operation it was necessary to remove entirely her womb and ovary; that from which suffering and the results of said operation she has suffered pain, nervousness, incapacity to labor, and expended for physicians and medical bills and hospital fees in the sum of $1,000, and has been damaged in the sum of $20,000 additional. Appellee alleged that at the time she received the injuries she was recovering from a former operation that had been performed upon her by surgeons at Greenville for appendicitis and the removal of some of her ovary and for prolapsus of her womb, but that said operation was a successful one, and she had been dismissed by her physicians, but was not entirely well, though but for the injury which she sustained while a passenger on appellant's train, she would have completely recovered, and would have been a stout, strong, and healthy woman thereafter.

Appellant filed a plea in abatement, challenging the jurisdiction of the court on the ground that at the time appellee received the injuries she resided in the city of Graham Young county, Tex., and that the injuries alleged to have been received by her occurred in the county of Tarrant, and that said county of Tarrant was the county where the alleged cause of action arose; that at the time plaintiff's original petition was filed, to wit, July 6, 1918, appellant's line of railroad and all of its rolling stock were in the possession of the President of the United States, under authority of the acts of Congress, and same was being operated and controlled by the President by and through W. G. McAdoo, as Director General of Railroads, appointed and acting under the authority of an act of Congress, and that the said Director General had made and published his General Order No. 18a, directed and commanded "that all suits against carriers while under federal control must be brought in the county or district where plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose"; that the proper jurisdiction of the cause under said order was either in Young county, at the place of plaintiff's residence at the time of the accident, or in Tarrant county, where the cause of action arose. After hearing said plea in abatement and the evidence introduced thereon, the court overruled the same, to which action of the court appellant excepted. Subject to its plea in abatement appellant answered, excepting generally and specially to plaintiff's petition, pleaded a general denial, and specially that the diseased condition of appellee which required the second operation alleged by her was the result of natural diseases and other causes, and that at the time of her alleged injuries she had only recently had a very serious operation, which was performed for the purpose of remedying the diseased condition of her female organs, and that at the time she became a passenger on appellant's train she was in a very weakened physical condition as a result of her first operation and her former sickness and disease, and that she was negligent in undertaking the trip at the time and under the circumstances. Appellant further pleaded that appellee was negligent in attempting to make the trip too soon after her operation; in leaving her seat and going into the dressing room at a time when the train in which she was riding was approaching her destination, and when she knew that, in the usual and ordinary movement of the train in approaching the tracks and in stopping and starting for crossings in the yards and in passing over other tracks, there would be more jars and uneven movements of the train than would be experienced while said train was running on a smooth and straight track; that notwithstanding such knowledge appellee left her seat and went into the ladies' toilet, and remained standing in such a position as to likely cause her in her weakened physical condition to be thrown about and injured; that she was careless in standing in such a position that her body was not properly braced to prevent it from being thrown about, and was careless in not steadying herself and holding to the handholds, provided for that purpose, all of which caused, or contributed to cause, her alleged injuries. The court overruled defendant's exceptions. When the case came on for trial appellant made application for a continuance on the ground of the absence of the witness, J. H. Hall, who was engineer on the train at the time of the alleged injury, which application was also overruled. The case was tried before a jury under the general issue, and on June 24, 1919, the jury returned a verdict in favor of appellee, for $7,500, and judgment was entered in accordance with the verdict. Appellant filed motion for a new trial, setting up, among other things, "newly discovered evidence." This motion was heard by the court, and evidence submitted on the issues raised with reference to the alleged newly discovered evidence. The motion was overruled, and appellant prosecuted an appeal to this court.

The first question presented is whether or not the court erred in overruling appellant's plea in abatement challenging the jurisdiction of the court on the ground that at the time appellee alleges she received the injury of which she complains she was a resident of Young county, Tex., and the alleged injury occurred in Tarrant county, Tex. The basis for the plea in abatement is that at the time the appellee brought this suit the appellant was in the hands of the federal government and under its control, and by its order the suit should have been brought, either in the county where the alleged cause of action arose or in the county of the appellee's residence.

There was no error in overruling appellant's plea in abatement. Section 10 of the act of March 21, 1918, c. 25, Fed. Stats. Ann., 1918, p. 762, provides (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115¾j):

"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"

—and declares that:

"Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law," etc.

On the date of the enactment of this statute by Congress, the law authorized the institution and maintenance of this suit in the district court of Hunt county. The orders referred to in appellant's plea in abatement are General Orders 18 and 18a of the Director General of Railroads, and our Supreme Court and other courts hold that, in so far as the terms of said orders undertook to restrict the rights granted by Congress to maintain a suit in any court of competent jurisdiction, they were invalid, and could not be upheld. El Paso & S. W. Ry. Co. v. Lovick (Sup.) 218 S. W. 489; Postal Telegraph Cable Co. v. Call, 255 Fed. 851, 167 C. C. A. 179; Haubert v. B. & O. Ry. Co. (D. C.) 259 Fed. 363.

Appellant's next contention is that the court erred in overruling its application for a continuance based upon the absence of the witness J. W. Hall. We are not prepared to hold there was reversible error in this ruling of the court. The bill of exception was qualified by the court as follows:

"This case had been set for trial and called on a former day of the term, at which time the witness Hall was not in attendance, and, defendant having applied for a continuance on account of his absence, the case was reset for a later day, giving sufficient time to take his deposition."

Thus it is made to appear that a previous application for a continuance on account of the absence of the witness Hall had been made by the appellant and the cause postponed to get his testimony, and that a sufficient length of time had elapsed from the date of such postponement to the date the case was again called for trial, to take the deposition of the witness. The suit was filed July 6, 1918, and was not tried until June 24, 1919. It does not appear that any effort was made to take Hall's deposition, and no claim is made that any such effort was made. The showing made to the effect that he was unable to testify by deposition is not sufficient, especially in view of the trial court's action in...