St. Louis Southwestern Ry. Co. of Texas v. Smitha , 1916 Tex. App. LEXIS 1158 ( 1916 )

It appearing that the basis of the suit commenced by Swain in Bowie county, Tex., was injury he suffered in Arkansas, and it further appearing that he died in California, where he resided, from an injury inflicted on him there, if the action of the trial court in overruling appellant's motion to remove appellee as administrator is sustained, it must be on the ground that Swain owned no estate subject to administration in Bowie county. It is conceded that, if the claim for damages asserted by his suit was not such an estate, he owned none in that county. Therefore the question presented by the appeal may be stated as follows: (1) Did Swain's claim against appellant for damages constitute an "estate" subject to administration? (2) If it did, then was such estate subject to administration in Bowie county, Tex.?

The first question should be answered in the affirmative. It appeared that appellant was a common carrier engaged in commerce between the several states, and that Swain's claim for damages against it was predicated on his claim that he was injured by its negligence while he was employed in such commerce. The act of Congress approved April 22, 1908 (1911 Supplement to U.S. Compiled Statutes, pp. 1322, 1323 [U.S. Comp.St. 1913, § 8657]), provided that:

"Every common carrier by railroad while engaging in commerce between any of the several states shall be liable in damages to any persons suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines," etc.

The liability created by the statute in Swain's favor, if he was injured as he claimed he was, was property belonging to him in his lifetime. Rivera v. Railway Co., 149 S.W. 227; Lessler v. De Loynes, 153 A.D. 903, 138 N.Y.S. 505; State v. Fidelity Deposit Co.,35 Tex. Civ. App. 214, 80 S.W. 553; Womach v. City of St. Joseph,201 Mo. 467, 100 S.W. 447, 10 L.R.A. (N. S.) 140; Richards v. Riverside Ironworks, 56 W. Va. 510, 49 S.E. 437; Railway Co. v. Beezley, 153 S.W. 652; Reiter v. Hamlin, 144 Ala. 192, 40 So. 290; 11 Ruling Case Law, p. 72, and authorities there cited.

The statute (Act Cong. April 5, 1910 [U.S. Comp.St. 1913, § 8665]), further provides:

"That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé," etc.

The provision just quoted operated, when Swain died intestate, to pass to the administrator of his estate, when appointed, the right to enforce, for the benefit of his wife and children, the liability created by the statute. As the right could be exercised by none other than such an administrator (Railway Co. v. Seale, 229 U.S. 156, 33 S. Ct. 651, 37 L. Ed. 1129, Ann.Cas. 1914C, 156; Fithian v. Railway Co. [C. C.] 188 F. 845), if Swain's claim for damages was not an "estate" subject to administration before its enactment, it is believed the statute operated to make it such an estate (Southern Pacific Co. v. De Valle Da Costa, 190 F. 689, 111 C.C.A. 417; Rivera v. Railway Co., 149 S.W. 227; Brown's Adm'r v. Railway Co., 97 Ky. 228, 30 S.W. 639; Forrester v. Southern Pacific Co., 36 Nev. 247, 134 P. 753, 136 P. 705, 48 L.R.A. [N. S.] 1).

The second question should also, we think, be answered in the affirmative. The right of action in Swain's favor was transitory in its nature. He could have sued on it in any county in Texas in which appellant operated its line of railway or had an agent. Article 1830, subd. 26, Vernon's Statutes; T. P. Ry. Co. v. Conway, 182 S.W. 52; Ry. Co. v. Weese, 32 Fla. 212, 13 So. 436. Appellant operated its line of railway in Bowie county, and had an agent there for the transaction of its business as a common carrier. Therefore the suit commenced in that county by Swain in his lifetime was maintainable there. The cause of action in his favor should not, we think, thereafter, and so long as the suit was pending, be regarded as a transitory one. The institution of the suit located it. This being true, as we think, it should be held that the right of action, which by the terms of the statute survived to his administrator, included the right to continue the prosecution of the suit founded on that cause of action in the tribunal where it was pending.

But if the right of action should be regarded as transitory, notwithstanding suit had been instituted on it, its situs for the purpose of administration nevertheless was, we think, in Texas. The general rule has been stated to be that:

"For the purpose of founding administration, all simple contract debts are assets at the domicile of the debtor." 11 Ruling Case Law, p. 71.

The rule is not different as to obligations for tort and obligations in contracts. Southern Pacific Co. v. De Valle Da Costa, 190 F. 693, 111 C.C.A. 417. In discussing it, the reasons for the rule were stated by the Supreme Court of California as follows:

"It is true that for most purposes a chose in action adheres to the person of the owner, but for the purpose of founding administration this is not true. For such purpose the situs is where the debtor resides. For this exception there are at least two good reasons: It may be necessary to bring an action upon notes to enforce payment, and this a foreign administrator or executor cannot do. As to other personal property, it may be necessary to have the aid of the law for its recovery and protection. But the main reason, no doubt, why local administration is provided for, is for the protection of local creditors and claimants. No state should allow property to be taken from its borders until debts due its own citizens have been satisfied." Murphy v. Crouse [135 Cal. 14]66 P. 971 [87 Am. St. Rep. 90].

And see Speed v. Kelley, 59 Miss. 51; Richards v. Riverside Ironworks,56 W. Va. 510, 49 S.E. 437; and Southern Pacific Co. v. De Valle Da Costa, 190 F. 689, 111 C.C.A. 417.

Another reason for the rule stated exists in the circumstances of cases like the one before us. Only by the application of such a rule can the right conferred by the act of Congress be enforced in the courts. If the contention of appellant, supported by the decision of the Court of Civil Appeals in Angler v. Jones, 28 Tex. Civ. App. 402, 67 S.W. 449, to wit, that the situs of a chose in action for the purpose of administration is the residence of the owner, should be sustained, the right of action given By the statute, and which by its terms survived to Swain's administrator for the benefit of his wife and children, became by his death unenforceable; for appellant being a Texas corporation, and its line of railway being wholly within this state, suit against it could not be maintained in the courts of any other state (12 Ruling Case Law, p. 107 et seq.; 19 Cyc. p. 1323 et seq.), and an administrator of Swain's estate appointed in some other state could not as such maintain a suit against appellant in any of the courts sitting in this state (Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Railway Co. v. Marvin, 59 F. 91, 8 C.C.A. 21; Green v. Rugely, 23 Tex. 548; Copper v. Railway Co.,41 Tex. Civ. App. 596, 93 S.W. 205).

In Angler v. Jones, referred to above as supporting appellant's contention, it appeared that one Foreman, when he died in Morris county, Tex., had no fixed place of residence and owned no property, except a half interest in a judgment he had recovered in Walker county, Tex., against a railway company. At the time he died the cause in which he recovered the judgment was pending on an appeal prosecuted by the railway company. In affirming a judgment denying Angler's application to the county court of Walker county for letters of administration on Foreman's estate, the Court of Civil Appeals, after quoting the statute (article 3209, Vernon's Statutes), said:

"We think it clear from the evidence in this case the jurisdiction to administer upon Foreman's estate exists only in the county court of Morris county — the county in which he died. We do not think the contention sound that, because the only property he owned at the time of his death was a judgment rendered in the district court of Walker county, in the purview of the statute above quoted his principal property was situate in said county. The situs of a judgment or of any chose in action follows the residence of the owner, and cannot, in law, be regarded as being situate elsewhere; and it cannot be said that Foreman owned any property in Walker county at the time of his death. Ferris v. Kimble [75 Tex. 476] 12 S.W. 689."

The case cited (Ferris v. Kimble) as supporting the ruling made does not support it. In that case the holding of the court was that credits are taxable at the place of residence of the owner. As, however, the writ of error applied for in the Angler Case was refused, it must be assumed that the Supreme Court approved the ruling of the Court of Civil Appeals. The ruling is clearly against the great weight of authority in other jurisdictions, and we think does not lay down the rule which should control in cases with facts like those in the Angler Case, and certainly not the rule which should control in cases with facts like the one before us.

The judgment is affirmed.