State v. Elliott

• Decision Date: 17 May 1919
• Docket Number: (No. 7748.)
• Citation: 212 S.W. 695
• Parties: STATE v. ELLIOTT.
• Court: Texas Court of Appeals

212 S.W. 695

STATE v. ELLIOTT.

(No. 7748.)

Court of Civil Appeals of Texas. Galveston.

May 17, 1919.

Appeal from District Court, Anderson County; John S. Prince, Judge.

Action by John H. Elliott against the State of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

B. F. Looney, Atty. Gen., Luther Nickels, of Eastland, A. G. Greenwood, of Palestine, and C. M. Cureton and W. J. Townsend, both of Austin, for appellant.

Campbell & Sewell, N. B. Morris, and N. B. Morris, Jr., all of Palestine, and Williams & Neethe, of Galveston, for the State.

GRAVES, J.

The Thirty-Fifth Legislature, at its Fourth Called Session (1918), passed an act enabling John Elliott, appellee, to sue the state of Texas for personal injuries alleged to have been suffered by him on or about March 6, 1916, while working for the State Railroad. This act was approved March 25, 1918, and is published as chapter 32, p. 59, Acts of the Fourth Called Session Thirty-Fifth Legislature, and, omitting caption, emergency, and service of process clauses, reads as follows:

"Section 1. John H. Elliott be and he is hereby granted permission to sue the state of Texas for damages for personal injuries received by him while on duty as a bridge carpenter in the employ of the Texas State Railroad about March 6, 1916.

"Sec. 2. That such suit may be filed in the district court of Anderson county, Texas, where the injury occurred, at any time within two years from the date this act takes effect; and said cause of action shall not be barred by limitation until two years from the date this act takes effect.

"Sec. 3. That such suit upon said cause of action shall be tried and determined in the trial and appellate courts according to the same rules of law and procedure, as to liability and defenses, that would be applicable if such suit were against an ordinary Texas railroad corporation; provided any amount determined due plaintiff in accordance with the provision of this act shall be approved by act of the Legislature."

On April 12, 1918, Elliott filed this suit against the state to recover damages for the injuries referred to, setting up this statute as the basis of his right to bring it, and alleging the injuries to have been sustained by him on the date given, while at work for the state as a bridge hand on what is known as the Texas State Railroad, which extends from Rusk, in Cherokee county, to Palestine, in Anderson county, in Texas; that by authority of law the railroad had been established, equipped, and was then through a general manager in person and such other agents and servants as are usually employed in that kind of business, being maintained and operated by the state as a common carrier of passengers and freight for hire; that at the time of his injury the appellee, while working under the orders of one of these employés, a foreman in charge of repairing bridges, etc., was riding along this State Railroad in the service of the state upon a push car furnished by the road and this foreman to transport the bridge carpenters to and from this work, and that the push car was negligently derailed, throwing him off and injuring him; that the derailment and his consequent injuries were the direct and proximate result of the negligence of the manager of the railroad, and of his servants, agents, and employés in failing to have and keep the push car in a safe condition, in operating it at a dangerous rate of speed, and in failing to keep and maintain the railroad track itself in a safe condition, in that its rails were allowed to spread and remain too far apart.

Upon the theory that the act thus passed was beyond the power of the Legislature as being an ex post facto or retroactive law, attempting to create liability against the state when none existed at the time of the accident in question, that it operated to suspend the statutes of limitation specially in favor of Elliott, that it essayed by special act to change the rules of liability, evidence, etc., retroactively, and, generally and independently, that the state was not liable for the alleged acts of negligence of its officers, agents, or employés, the same being merely their personal torts or misfeasances, the defendant presented and urged various demurrers and exceptions to the petition, assailing the statute as actually having the effect of contravening all these provisions of the Constitution of Texas:

(1) Section 49, art. 3, which provides that "no debt shall be created by or on behalf of the state, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the state in war, or pay existing debt."

(2) Section 44, art. 3, reading: "The Legislature * * * shall not grant * * * by appropriation or otherwise, any amount of money out of the treasury of the state, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law."

(3) Section 53, art. 3, reciting that "the Legislature shall have no power to grant * * * any extra compensation, fee or allowance to a public officer, agent, servant, or contractor after service has been rendered or a contract has been entered into, and performed in whole or in part."

(4) Section 51, art. 3, providing that "the Legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual * * * whatsoever."

(5) Section 6, art. 16, wherein it is provided that "no appropriation for private or individual purposes shall be made."

(6) Section 56, art. 3, providing that the Legislature shall not pass any local or special law, "regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts," etc., or "for limitation of civil or criminal actions," or "in all other cases where a general law can be made applicable."

(7) Section 3, art. 1, which is: "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services."

(8) Section 16, art. 1, reading: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made."

Other special exceptions averred that the cause of action was barred by the statute of two years' limitation, in that it appeared to have arisen on March 6, 1916, more than two years before the filing of this suit to recover thereon, on April 12, 1918.

There were further defensive pleadings, but, since the demurrers fully raise the only questions presented upon appeal, it becomes unnecessary to recite them.

All the demurrers were overruled, the cause was submitted to a jury on special issues, who, after finding that Elliott sustained his injuries as a direct and proximate cause or result of the negligence of the manager of the railroad, his agents, servants, and employés in charge of and operating the same, in failing to have the track in a reasonably safe condition, and in failing to operate the push car at a reasonably safe rate of speed, fixed his damages at $8,500; from a judgment entered against it pursuant to the verdict the state appeals.

It is first contended the general demurrer should have been sustained below, because "it having appeared from the petition, and being judicially known, that the State Railroad was being operated by agents or servants of the state at the time of the accident in question, and it being alleged that the injuries complained of were caused by the negligence of such agents or servants, no liability accrued against the state by reason of such negligence, and therefore the petition failed to show a cause of action against the state."

Then follow numerous propositions and assignments presenting in extended detail all the above-mentioned constitutional objections, and possibly some others, to the enabling act declared upon, together with citations of authorities, and able arguments in support of the insistence that the act offends the Constitution in quite a number of particulars.

After careful consideration of the issues presented by the appeal, however, aided, as the court has been, by illuminating oral discussion from counsel for both litigants, neither the assault upon the law permitting the suit nor upon the judgment rendered is thought to be well founded; indeed, the state's contentions are to us so comprehensively and satisfactorily answered in the brief filed in this court by the able and experienced counsel for the appellee that, under a feeling that we may not otherwise better express the conclusions reached, the liberty is taken of here adopting this part of it as the opinion of this court:

"Notwithstanding the many assignments of error in appellant's brief, and the many constitutional provisions relied on therein, there is but one really serious question in this case, which is whether or not liability of the state arose out of the facts attending appellee's injury under the principles of law then existing. That question may be presented fully under appellant's first assignment without following all the others in their order.

"First Counter Proposition. The state being the owner of the State Railroad, and doing with it a general railroad business, including that of common carrier, and having, through her agents, duly authorized by the Legislature, entered into a contract of employment with appellee, one of the obligations of which was that the employer, the state, would exercise due care to furnish plaintiff a safe place in which to work, and having failed to exercise such care, thus breaking her contractual obligation and causing the injury to plaintiff, was liable for the resulting damages. Fristoe v. Blum, 92 Tex. 76 , and authorities therein cited; Ry. Co. v. Culberson, 72 Tex. 378 [10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805]; Ry. Co. v. Gaskill, 103 Tex. 443 ; Imperial Sugar...