Tex. & P. R'Y Co. v. Kirk

• Decision Date: 19 October 1884
• Docket Number: Case No. 1781.
• Court: Texas Supreme Court
• Parties: THE TEXAS & P. R'Y CO. v. LAURA KIRK.

62 Tex. 227

THE TEXAS & P. R'Y CO.

v.LAURA KIRK.

Case No. 1781.

Supreme Court of Texas.

Oct. 19, 1884.

APPEAL from Harrison. Tried below before the Hon. A. J. Booty.

Suit brought in the district court of Harrison county by George Anna Kirk, a citizen of the state of Virginia, and Laura Kirk, on the 23d day of March, 1881, for damages, wrongs and injuries alleged to have been done them by reason of the death of William Garth Kirk, husband of Laura Kirk and son of George Anna Kirk. The plaintiffs alleged that Wm. Garth Kirk came to his death by reason of the negligence of appellant's agents and servants. The petition averred that, on the 6th of November, 1880, Wm. Garth Kirk was traveling as a passenger on appellant's road, from Minneola to Marshall, Texas; that while Kirk was traveling on the train, and when the same reached Lake Fork station, and after going a short distance beyond it, the train of cars was, by reason of the gross neglect and criminal carelessness of defendant, its agents and servants, thrown from the track and broken to pieces, and Wm. Garth Kirk was severely wounded and injured, by reason of which he died. Plaintiffs averred that the accident was caused by a broken rail in defendant's road-bed, a piece of which, three feet long, was missing; that the road-bed was greatly out of repair, and had been out of repair for a long time previous to the 6th of November. That defendant, by the exercise of ordinary care and diligence, could have known of the bad condition of its road, and could have prevented the accident. The plaintiff claimed actual and exemplary damages in the sum of $100,000.

Between the institution of this suit and the trial of the same, the death of George Anna Kirk was suggested, and the suit was afterwards prosecuted in the name of Laura Kirk alone.

Answer, general and special exceptions, and general denial; that the iron rails and cross-ties used by defendant for supporting its trains were of the most substantial character; that the iron rails were purchased from first class manufactories and were manufactured according to the most approved pattern; that the servants employed by defendant in running its trains were able, competent, skilful men; that the rail alleged to have been broken was apparently sound in every particular and no defects whatever were visible; that a short time previous to the wreck, the track was carefully inspected by a skilful agent appointed by defendant and found to be in good condition, and all rails that were loose or out of repair were carefully adjusted to the road-bed. Defendant further alleged that the accident was caused, if at all, by reason of a severe and sudden cold spell which occurred about the 6th of November and caused the rails in the road to become brittle and more liable to break, and that if the rail broke at all, it was by reason of the cold spell and not on account of the negligence of defendant or its servants. On the 13th of May, 1881, defendant filed its petition to remove this cause to the United States court at Jefferson, which petition was accompanied by the proper bond. The bond was approved by the court and the petition overruled and denied on the 16th of May, 1881, to which ruling defendant excepted.

The appellant, in its petition for the removal of the cause to the circuit court of the United States, alleged that it was a corporation created by act of congress of the United States; that it was not a banking corporation, and that it had a defense to the suit arising under the laws of the United States, to wit, its act of incorporation, and that it was a citizen of the state of Pennsylvania and had its domicile in that state.

Appellee filed grounds of objection to the petition for removal, which were substantially as follows: That the petition was insufficient in law; that it presented no facts that constituted a defense, arising under the constitution and laws of the United States, to this action; that the allegation of defendant's having its domicile in Pennsylvania did not make it a citizen of that state, congress having no right to create an artificial citizen of a state; that any law of the United States conferring special jurisdictional privileges on corporations created by act of congress was unconstitutional and void; that the government of the United States possessed no constitutional authority to create a corporation to construct and operate a railroad in a state; that an act of congress authorizing the removal of a cause from a state to a United States court on the ground that the defendant has a defense arising under the constitution and laws of the United States, without requiring a statement of the facts constituting a defense, is unconstitutional and void; that appellant is, for jurisdictional purposes, a consolidated Texas corporation, and estopped from denying that it is such by reason of the following acts of the legislature of Texas, viz.: first, an act entitled “An act to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,” passed May 24, 1871; second, an act entitled “An act amendatory of and supplementary to an act entitled ‘An act to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,’ passed May 24, 1871,” passed November 21, 1871; third, an act entitled “An act to define the rights of the Texas & Pacific Railway Company within the state of Texas, in order to encourage the speedy construction of a railway through the state of Texas to the Pacific ocean,” passed May 2, 1873; that the defendant had not in fact any defense arising under the constitution and laws of the United States as shown by the record; and that the effort to remove was an attempt to perpetrate a fraud on the jurisdiction of the court.

The facts in this case are not presented as required by the rules; the questions to and answers by witnesses are given in full. They seem to establish clearly the charge of gross negligence.

Verdict and judgment for appellee for $12,500 actual damages.

Turner & Stewart, for appellant, on their proposition that the court erred in not removing the cause to the United States circuit court, cited: Union Pacific R'y Co. v. Fisk, 8 Blatch., 362; Hatch v. Chicago, R. I. & Pacific R. R. Co., 6 Blatch., 105; Fisk v. U. P. R. R. Co., 8 Blatch., 243; Dennistown v. Draper, 5 Blatch., 336; Shaft v. Phœnix Ins. Co., 67 N. Y., 544;Bell v. Dix, 49 N. Y., 232;Berry v. R. R. Co., 64 Mo., 533; Hereford v. Ætna Insurance Co., 42 Mo., 148; Osgood v. R. R. Co., 7 C. L. N., 241; Kern v. Huidekoper, 13 Otto, 485.

That the deceased was a fellow-servant and the company not responsible, they cited: Laning v. N. Y. C. R. R. Co., 10 Am. Rep., 417; Farwell v. B. & W. R. R. Co., 4 Met., 49.

F. B. Sexton and W. & N. A. Steadman, for appellee, cited on jurisdiction: Whitton v. R. R. Co., 13 Wall., 270;Muller v. Dows, 4 Otto, 444; Cissell v. McDonald, Reporter, vol. 7, 553; Slaughter-House Cases, 16 Wall., 36;Stephenson v. Tex. & Pac. R'y Co., 42 Tex., 162; “An act to extend the time for the construction of works of internal improvement,” passed March 15, 1875-- a general law; also Wright v. Hawkins, 28 Tex., 452;Keyes v. Gold Washing & Water Co., 6 Otto, 199; Const. United States, art. 1, sec. 8, art. 3, sec. 2; Cooley's Const. Lim., pp. 173, 391; United States v. Reese et al., 2 Otto, 215;United States v. Cruikshank, 2 Otto, 542.

STAYTON, ASSOCIATE JUSTICE.

The petition for the removal of this cause from the district court of this state to the United States circuit court is in all material respects the same as was the petition for removal in the case of Tex. & Pac. R'y Co. v. McAllister, decided at the last Austin term of this court. 59 Tex., 349.

In that case it was held that the petition for removal stated no sufficient grounds therefor.

In this case no authority or reason has been brought forward inducing us to doubt the correctness of the decision made in the case referred to, and without again giving the reasons set forth that case, we hold that...