Texas & P. Ry. Co. v. Conway , 1916 Tex. App. LEXIS 26 ( 1916 )

After the cause was remanded by the federal to the state court, appellant insisted that the latter court thereby did not acquire jurisdiction to try it, because, it asserted, the federal court had power to try it, and therefore had no right to remand it to the state court; and further insisted that because the injury to appellee occurred in Fannin county, where he at the time resided, he must have commenced his suit in that court, and did not have a right to sue in Harrison county. The action of the court below in overruling these contentions is made the basis of the first and second assignments.

So far as the first of the two contentions is concerned, it is enough to say that the action of the federal court in remanding the cause is not subject to revision by this court. Telegraph Co. v. Luck, 91 Tex. 178,41 S.W. 469, 66 Am. St. Rep. 869.

It conclusively appeared (1) that appellee was injured in Fannin county, Tex., and that he resided in that county at the time he was injured; and (2) that he resided in Carroll county, Ark., at the time he commenced his suit. Therefore, whether the second of the two contentions should have been sustained or not depends, first, upon whether subdivision 26 of article 1830, Vernon's Statutes, should have been so construed as to require him to sue in said Fannin county, or whether it should have been so construed as to authorize him to sue as he did in Harrison county, Tex.; and, second, upon whether, if he must have sued in Fannin county, it appeared that appellant had waived its right to insist that he do so.

The subdivision of article 1830 referred to is as follows:

"All suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in the state of Texas, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury; provided, that if the defendant railroad corporation does not run or operate its railway in or through the county in which the plaintiff resided at the time of the injury, and has no agent in said county, then said suit shall be brought either in the county in which the injury occurred, or in the county nearest that in which the plaintiff resided at the time of the injury, in which the defendant corporation runs or operates its road, or has an agent; and provided, further, that, in case that the plaintiff is a nonresident of the state of Texas, then such suit may be brought in any county in which the defendant corporation may run or operate its railroad, or may have an agent; provided, that, when an injury occurs within one-half mile from the boundary line dividing two counties, suit may be brought in either of said counties."

It will be readily seen that if the language used in the proviso, to wit, "in case the plaintiff is a nonresident of the state of Texas," refers to the time when he commenced his suit, and not to the time when he was injured, appellee had a right to sue in Harrison county; for he was then a nonresident of this state and appellant then operated its line of railway and had an agent in that county.

Before the enactment of the subdivision set out above of article 1830, a person having a cause of action for damages for personal injury against a railroad company, without reference to whether he was a resident or nonresident of this state, might have sued thereon in any county in which the company had an agent or into which its line of railway extended. Subdivision 24, art. 1830, Vernon's Statutes. The effect of the enactment of subdivison 26 was to so limit the right of a resident of this state having such a cause of action as to require him to sue thereon in the county where he was injured, or in the county where he resided when he was injured, unless the company did not have an agent or did not operate its line of railway there, in which event he was authorized to commence his suit in the county where the company had an agent or operated a line of railway nearest the one in which he resided at the time he was injured, The main purpose of the enactment of subdivision 26 seems to have been to so limit a resident plaintiff's right; for the right of a nonresident of the state having such a cause of action to sue thereon in any county in the state where the company had an agent or where it operated a line of railway not only was not thereby in any way limited, but, on the contrary, was expressly affirmed. Why the Legislature thought it proper to discriminate against a resident of this state having a cause of action for damages for personal injury against a railway company, by limiting a right it conferred without limitation upon a nonresident having such a cause of action, is not disclosed by anything appearing in their enactment. But that they did so is plain. As before the enactment of subdivision 26 a nonresident, without reference to whether he had ever been a resident of the state or not, and without reference to the county in which he was injured, might have commenced a suit for damages for personal injury he had suffered in any county where the company had an agent or operated a line of railway, we see no reason why a statute expressly affirming such a right in a nonresident should be construed as denying it to him because he was a resident of the state at the time the cause of action arose in his favor. There is nothing in the statute indicating that the Legislature intended to discriminate between nonresidents by denying to one who had removed to another state a right it conferred upon one who had never resided here. On the contrary, the language used in the statute indicates, we think, that it was intended to apply in favor of all persons who were nonresidents of this state at the time they commenced suit against a railway company for damages for personal injury suffered by them in this state. Being of opinion that appellee, because a nonresident of the state of Texas at the time he commenced his suit, had a right to commence and prosecute it in Harrison county, where appellant had an agent and operated a line of railway, it is not necessary, as it would be if we were of a contrary opinion, to determine whether appellant had waived a right it would then appear it had to have the cause tried in Fannin county.

In the third and fourth assignments the verdict is attacked on the ground that it is excessive. It is not pretended that there is anything in the record, except the amount of the verdict, indicating that the jury in assessing the damages were influenced by other than proper motives. When the injury the jury had a right to believe from the testimony appellee suffered is kept in mind, we do not think the amount of their verdict indicates that their judgment was controlled by any other consideration than an honest desire to discharge their duty by awarding to appellee a sum which would compensate him for the injury he sustained. At the time he was injured, appellee was 40 years of age and had an earning capacity of from $110 to $175 per month. The jury had a right to believe from the testimony that the injury he sustained probably would permanently disable him from engaging in remunerative labor. Moreover, they had a right to believe he would suffer severe physical and mental pain as a consequence of the injury as long as he lived, and that as a further consequence thereof he was liable to die at any moment. They might very well, we think, have concluded that the condition the injury left him in was worse than it would have been had he lost his leg entirely as a result thereof.

Special issues were submitted to the jury. Among them were two, as follows:

(1) "Did Conway's duties require him to use the footboard on the engine in performing his regular duties?" The jury answered that they did.

(2) "If Conway had given attention to the duties required of him in performing his duties, would he have observed the condition of the footboard?" The jury answered that he would not.

In propositions under the fifth, sixth, and seventh assignments the findings set out above are attacked on the ground that they contradict each other; and the second of the two is further attacked on the ground, it seems, that it was without support in the testimony. We do not think the findings are necessarily contradictory. The jury doubtless meant by the first that it would have been appellee's duty, had an occasion requiring him to do so arisen, to use the footboard; and by the second that in the discharge of his duties on the night when he was injured it had not been necessary for him to use the footboard before he stepped upon and slipped off of it, and he had not been called upon to observe, and therefore did not know, its condition. Appellee testified that he did not know the footboard was bent until after he was injured. The jury, we think, might very well have concluded that in giving the attention he should have given to the duties he was engaged in performing, and not having had occasion before he was injured to use the footboard, as he testified was true, he would not have discovered its condition.

The judgment is affirmed.