Standard Light & Power Co. v. Munsey

• Decision Date: 07 November 1903
• Citation: 76 S.W. 931
• Parties: STANDARD LIGHT & POWER CO. v. MUNSEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 931

76 S.W. 931

STANDARD LIGHT & POWER CO. v. MUNSEY.^*

Court of Civil Appeals of Texas.

November 7, 1903.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by Cecelia L. Munsey against the Standard Light & Power Company and others. From a judgment in favor of plaintiff, defendant light and power company appeals. Judgment affirmed conditionally as to defendant light and power company. Judgment reversed as to certain defendant bondholders, and affirmed as to defendant E. M. Reardon, receiver of the Dallas Electric Company.

Etheridge & Baker, for appellant. Holloway & Holloway, for appellee.

RAINEY, C. J.

Appellee, Cecelia L. Munsey, widow of Albert Munsey, brought this suit in her own behalf and for the use and benefit of George and Elsie Munsey, surviving parents of said Albert, for injuries causing the death of said Albert. The parties complained of were the Standard Light & Power Company, a corporation, Granville P. Meade, receiver thereof, E. M. Reardon, receiver of the Dallas Electric Company, and the bondholders of the Dallas Electric Company. Proper allegations as to the appointment of the receivers were made. As to the bondholders of the Dallas Electric Company, it was alleged as follows: "That the defendant the bondholders of the Dallas Electric Company is a foreign association, or acting association, composed of numerous persons who are nonresidents of Texas, whose names and places of residence are unknown to the plaintiff; that the affairs of said association or acting association are under the management of a certain bondholders' committee, as hereinafter more fully set out, said committee being composed of one or more persons, nonresidents of Texas, whose names and places of residence are unknown to the plaintiff; that A. K. Bonta, who temporarily resides in Dallas county, though a nonresident of Texas, is the general manager and local agent within this state of said association, and is the duly authorized representative of said association and of said bondholders' committee." For cause of action plaintiff claimed that on May 30, 1901, her husband, Albert L. Munsey, was in the employ of E. M. Reardon, receiver, engaged in constructing and repairing the electric wires used by said receiver in furnishing light and electric power to the citizens of the city of Dallas; that while so employed, and in the course of his duties in such employment, he ascended a pole upon which the wires were suspended, and while engaged in the work on said pole came in contact with live wires belonging to the Standard Light & Power Company on said pole, which contact caused his death. She claimed that the said receiver was liable for the death of her husband, in that he had unnecessarily exposed her husband to the risk out of which his death ensued, and had failed to avail himself of certain means provided, whereby said wires could have been made safe. As an alternative averment, the plaintiff alleged that, if her said husband was not in the employ of the said Reardon, then he was in the employ of certain bondholders of the Dallas Electric Company, which bondholders had committed the management of their interests in the Dallas Electric Company into the hands of a certain committee of their number; that said committee employed and empowered one A. K. Bonta to take charge of certain work of improvement and reconstruction of the plant of the Dallas Electric Company; and the claim was made that said bondholders, acting through said bondholders' committee, and they acting through A. K. Bonta, had employed the said plaintiff's husband, and that the latter was killed while in the employ of the said bondholders, and by reason of the negligence of the said bondholders, their committee, and the said Bonta, and their other officers and agents. Plaintiff joined the Standard Light & Power Company on the theory that that company owed plaintiff's husband the duty of keeping certain wires which belonged to that company, and which were strung upon a pole upon which plaintiff's husband was working at the time of his death, well insulated, and properly placed on said poles, so that same might be safe for plaintiff's husband to work in and around and over same, and it was claimed that said defendant had failed to discharge the duty so owing to it by the deceased. Granville P. Meade was sued as receiver of the Standard Light & Power Company, it appearing that he had been appointed receiver subsequently to the alleged negligence of the company, which occasioned the death of the said Munsey. The plaintiff recovered judgment against the alleged bondholders of the Dallas Electric Company, without naming them, and against the Standard Light & Power Company. Judgment was rendered in favor of the two receivers, and no cross-appeal is prosecuted by plaintiff from the judgment in favor of said receivers. The bondholders and the Standard Light & Power Company have duly perfected this appeal, and now here prosecute the same.

The contention of the bondholders is that the allegations of plaintiff's petition and proof show that there was no such an association or acting association, but, if so, the individual members thereof not having been made parties to the suit, the court should not have rendered judgment against the bondholders of the Dallas Electric Company. No one of the bondholders was made a party to the suit. Citation was had upon A. K. Bonta, who was selected by a committee appointed by the bondholders to represent them in the work of reconstructing the property. An answer was filed by the "Bondholders of the Dallas Electric Company." No one of the bondholders appeared or answered. The only testimony produced on trial tending to show the bondholders to be an association is that of Henry Coke and A. K. Bonta. Henry Coke, a witness for plaintiff, testified: "I do not know, but am satisfied, that all of these bondholders of the Dallas Electric Company are nonresidents, and their headquarters, I think, are in Boston, and most, if not all, of them citizens of Massachusetts. I am satisfied none of them are residents of Texas. I know several of the bondholders personally. My recollection is that they are numerous. I filed a bill in equity in the United States Circuit Court for the Northern District of Texas, as attorney for the trustee of the bondholders, for the foreclosure of their mortgage upon the properties of the Dallas Electric Company. After the filing of the bill, the bondholders, through a committee chosen by them, concluded that it was to their interest to expend some money in the reconstruction of the plant. That committee was Robert T. Payne and Robert T. Platt. I do not remember the terms of the agreement by which the trustees were appointed, but I think under the terms of the agreement one could resign and another be appointed. The personnel of the committee has been changed several times. The only connection that either the bondholders or the bondholders' committee had, either directly or indirectly, with the Dallas Electric Company, was in spending some money in trying to improve its condition. A. K. Bonta came here to superintend the expenditure of the money. The bondholders were in no sense the owners of the plant. They were not operating it, but with the permission of the receiver appointed by the United States Circuit Court they expended their money in improving it." A. K. Bonta, a witness for defendant, testified: "I am in the employ of the bondholders of the Dallas Electric Company, having been in charge of all reconstruction work done by the bondholders on the plant since March 1, 1901. Something in the neighborhood of $300,000 has been expended in reconstruction work on the plant. The work was in progress May 30, 1901. Charles Eames had charge of the reconstruction work of the plant for the bondholders in May, 1901. I had charge of the reconstruction after Eames, which was some time after May, 1901. On May 30, 1901, John Woods was the foreman of the gang in which Munsey was working. John Woods was under the direction of Charles Eames. Munsey and the others in the gang in which he was working were working for the bondholders of the Dallas Electric Company."

We think it immaterial whether or not, in legal contemplation, there was an association. The petition alleged that the bondholders were an association, and, the "bondholders" having answered in that name, they are not in a position to question it. But, if it should be...