Texas & N. O. R. Co. v. Churchill

• Decision Date: 11 October 1934
• Docket Number: No. 2637.,2637.
• Citation: 74 S.W.2d 1030
• Parties: TEXAS & N. O. R. CO. v. CHURCHILL.
• Court: Texas Court of Appeals

74 S.W.2d 1030

TEXAS & N. O. R. CO. v. CHURCHILL.

No. 2637.

Court of Civil Appeals of Texas. Beaumont.

October 11, 1934.

Rehearing Denied October 17, 1934.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Action by R. E. Churchill against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Baker, Botts, Andrews & Wharton, of Houston, and Procter, Vandenberge, Crain & Vandenberge, of Victoria, for appellant.

Hull & Oliver, of San Antonio, for appellee.

WALKER, Chief Justice.

Appellee, R. E. Churchill, was in the employment of appellant, Texas & New Orleans Railroad Company, as a brakeman. On or about the 16th day of January, 1932, as appellant's train was moving out of the town of Beeville, appellee, in the discharge of his duties as brakeman, tried to board the caboose of this train by seizing the handholds on the caboose prepared and placed there for his use. As he seized the handholds, one of them gave way. He alleged that the defective condition of the handholds caused him to fall to the ground and to suffer the physical injuries for which this suit was brought. Appellee alleged his employment by appellant and the other facts stated above, and specially pleaded the defects in the hand-holds as follows: "That the said hand-hold was in a defective condition and came loose, was not properly screwed down and was not securely fastened with bolts, screws or nuts, and that the bolt came out or loose, and same was attached to defective wood and was in a general defective condition, and really amounted to no hand-hold at said place at all; that to have said hand-hold in said condition was negligence and such directly caused or directly contributed to the accident and plaintiff's injuries."

Appellant answered by general demurrer and general denial. The case was tried to a jury, and, after overruling appellant's motion for an instructed verdict, the court submitted the following issues to the jury: (1) As to whether appellant failed to have a secure handhold on the right rear end of the caboose upon the occasion in question; (2) as to whether such failure directly caused the accident; (3) as to whether such failure directly caused appellee's injuries; (4) as to whether appellant failed to have a sufficient handhold on the right rear end of the caboose upon the occasion in question; (5) as to whether such failure directly caused the accident; (6) as to whether such failure directly caused appellee's injuries; and (7) as to the amount of damages.

Issues 1 to 6 were each answered in the affirmative, and the answer to the seventh issue judgment was entered on the verdict in favor of appellee for the sum of $13,812.50, from which the appeal was regularly prosecuted to the San Antonio Court of Civil Appeals, then transferred to this court by orders of the Supreme Court.

Appellee's petition was not subject to the general demurrer on the ground that he failed to allege that, at the time of his injury, appellant was engaged in either interstate or intrastate commerce. The petition alleged the facts showing that appellant was engaged in intrastate commerce; thus it was alleged: "Plaintiff would respectfully represent that on said date along about two o'clock in the afternoon in the town of Beeville, Texas, while in the performance of his duties as a brakeman for the said defendant he was in the act of boarding or getting on the caboose of the train upon which or with which he was working at the said time, and while said train was beginning to move out of the town of Beeville or moving along the railroad track, said train having just begun to start, he grabbed or took hold of the hand-hold on the side of the caboose with his right hand and his left hand took hold of the hand-hold on the end side of the caboose, the said hand-hold which he took hold of on the end side being placed there for the safety of the employees of the defendant, and at said time said end side hand-hold gave way and caused plaintiff to fall on the ground on rocks or hard surface and thereby injured his back and heart."

In 28 Tex. Jur. 382, § 223, subject Master and Servant, the following rule is announced: "However, unless the petition discloses that the suit is within the purview of the federal statute, there is no sufficient allegation of a cause of action thereunder, and the suit will be treated as one at common law or under statute law of Texas."

In support of this rule the text cites the two following cases, writs refused in both cases: Missouri, K. & T. Railway Co. v. Hawley, 58 Tex. Civ. App. 143, 123 S. W. 726; Missouri, K. & T. Railway Co. v. Neaves, 60 Tex. Civ. App. 305, 127 S. W. 1090, 1091. In the Neaves Case the court said, citing its former opinion in the Hawley Case: "We were then, and are now, of the opinion that if, in a case of this character, brought in a state court, the plaintiff's petition does not disclose that the suit is based upon the federal statute, under consideration, it must be said that he is not seeking to recover for an injury received while engaged in interstate commerce, and the sufficiency of his petition must be tested by the state law."

In 45 C. J. 1061, it is said: "Sufficiency of Allegation: The sufficiency of the pleading of such duty must be determined upon the facts from which the duty is deduced; in order to be sufficient the duty of care on the part of defendant must be shown by an allegation of facts from which the duty follows as a matter of law. It is sufficient to state facts from which the duty so arises without showing the details; and if such facts are stated it is not necessary to allege the manner in which the duty was imposed. So also, if the facts stated show a legal duty of care, an express allegation of such duty is not necessary; and if such an allegation is made it may be treated as surplusage, for if the particular facts stated raise the duty, the allegation is not necessary, and, if they do not, it is unavailing. A mere general allegation of the existence of such duty, without a statement of facts from which the duty arises, is insufficient, as being a mere statement of a legal conclusion."

Also in 39 C. J. 937, the following rule is announced: "Where the allegations bring the case within the statute, it will be construed as a statutory, not a common-law, action, unless the statutory remedy is merely cumulative and a common-law cause of action is also stated; and it is not necessary to recite or make specific reference to the statute, nor expressly allege that the action is based thereon."

In this case no reference was made either to the federal or state statute, but, as facts were pleaded sufficient to invoke the state statute, it must be said that appellee was invoking the state statute; and as the facts further show that appellant, at the time appellee was injured, was engaged in intrastate commerce, the petition was not subject to the general demurrer nor was appellant entitled to an instructed verdict under this proposition.

Nor was appellant entitled to an instructed verdict on the theory that, under the evidence, appellee was not injured in the manner pleaded by him; that, even if he was caused to fall in the manner pleaded by him, he suffered no injury thereby; that his condition was the result of syphilis and not the fall; nor were the answers to questions 1 to 6 without support in the evidence and so against the great weight of the evidence as to be clearly wrong; nor were the damages assessed excessive. It would serve no useful purpose to review in detail the testimony on these issues. Briefly summarized, the testimony of appellee himself and of both his lay and expert witnesses fully supports his contention that he was seriously injured. We quote as follows from the testimony of appellee, questions and answers reduced to narrative:

"When I got to Houston they carried me to the Texas and New Orleans and the Southern Pacific Hospital. They put my cot there, and after while they came around—some fellow came around with a big light and put it on my back and left it there about 20 or 30 minues. Two doctors looked me over then. They didn't do anything but just looked at me there and looked at my back. I left there that night and went to San Antonio. I was suffering pains in the lower part of my back, around just a little below my belt, and in my legs. When I got to San Antonio I went to bed, and the next morning about seven o'clock I 'phoned for Dr. Boshardt, a railroad doctor in San Antonio, whom two or three of my neighbors recommended to me. He came to see me about 10:30 or 11 o'clock. He looked me over and said he would be back later and put some tape on me. He came back about two or three hours later and put adhesive tape on me. He came back in about three or four days and talked to me about how I was getting along, but didn't do anything to me then. That tape stayed on there, I guess, about five or six days and it got loose and sweaty and moving around and irritating me, and I either 'phoned Dr. Boshardt and asked him could I take it off or he came out and took it off himself, I am not sure which. Dr. Boshardt came back to see me a few days after that, but during that time I suffered much with my heart and back and legs. The lower part of my back hurts me most, it is sore and hurts me all the time; my heart feels heavy and has pains, and when I walk I get out of breath if I walk very far at one time; my left leg hurts me all the time—both of my legs hurt, but the left is the worst, and I feel dizzy all the...