Sullivan-Sanford Lumber Co. v. Watson

• Decision Date: 26 March 1913
• Citation: 155 S.W. 179
• Parties: SULLIVAN-SANFORD LUMBER CO. v. WATSON et al.
• Court: Texas Supreme Court

155 S.W. 179

SULLIVAN-SANFORD LUMBER CO. v. WATSON et al.

Supreme Court of Texas.

March 26, 1913.

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

Action by Mrs. Beulah Watson and others against the Sullivan-Sanford Lumber Company. A judgment for plaintiff was affirmed on appeal to the Court of Civil Appeals (135 S. W. 635), and defendant brings error. Reversed.

Chas. S. Todd, of Texarkana (Harry P. Lawther, of Dallas, of counsel), for plaintiff in error. Hart, Mahaffey & Thomas, of Texarkana, S. I. Robison, of Daingerfield, and J. M. Terrell, of Dallas, for defendants in error.

BROWN, C. J.

The honorable Court of Civil Appeals made an excellent and full statement of the case and findings of facts in this case, which we adopt (135 S. W. 635).

It has been decided in this state that "a logging road," such as that of plaintiff in error, is a railroad within the terms of section 1 of article 4694, Revised Statutes 1911, which reads: "1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charter, hirer, of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers or other person or persons in charge or control of any railroad, their servants or agents; and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery, or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company."

The private corporation which owned and operated the logging road on which the death of John A. Watson occurred was "owner" of that road and liable, under the statute above copied, to the same extent as any other corporation or person would be. Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479.

After careful examination, we are of opinion that the judgment must be affirmed unless the exemption from liability for injuries embraced in the pass on which Watson was riding is valid and defeats the right of recovery.

The wife and children cannot recover if Watson could not have recovered if he had survived his injuries.

Article 4695, Revised Statutes 1911, reads: `The wrongful act, negligence, carelessness, unskillfulness, or default mentioned in the preceding article, must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury."

The terms of the pass pleaded here were denounced in G., C. & S. F. Ry. Co. v. McGown, 65 Tex. 640, as contrary to public policy, therefore void when issued by a public carrier. There are a number of cases decided by the Courts of Civil Appeals to the same effect as the case cited. The courts of the different states are much divided on the question but we accept the opinion of Judge Stayton in the case cited as conclusively settling the question in this state, so far as the carriage of passengers upon public passenger trains may be involved. But the question remains, Does it apply to cases like this, where no passengers, as such, were carried at any time? The opinion of Judge Stayton in G., C. & S. F. Ry. Co. v. McGown, supra, is sustained by many cases, and is perhaps adverse to the weight of authority; but it is a strong presentation of the position taken by that court. The remaining question is, Do the facts of this case bring it within the reason of that case so as to render void the limitation of liability contained in the pass issued to Watson?

The opinion in Railway Co. v. McGown presents...