
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BLALACK et al.
    (Supreme Court of Texas.
    June 5, 1912.)
    1. Master and Servant (§ 265) — Injuries to Servant — Actions—Burden oe Proof.
    Where, in an action against a railroad company for negligent death, the evidence of plaintiff showed that decedent was an agent of an express company, employed and paid by it, and entitled to ride on the trains of the railroad company, under a contract between the two companies, and that he was killed through the negligence of the employés in charge of the train, the railroad company, .engaged in interstate commerce, must show that plaintiff’s claim was unfounded, and that decedent was in its employ, to avail itself of the federal Employer’s Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]); and, where it failed to do so, the state law will govern the right to recover.
    [Ed. 'Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    2. Carriers ' (§ 241) — Carriage of Passengers — Express Messengers.
    An agent of an express company, employed and paid by it, and entitled, under a contract between the company and a railroad company, to ride on trains of the railroad and care for express matter on trains, is a passenger while on a train in the discharge of his duty, entitled to the protection of passengers.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 977-979; Dec. Dig. § 241.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Mrs. Linnie Blalack and others against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment of the Court of Civil Appeals (128 S. W. 706), affirming a judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Templeton, Craddock, Crosby & Dinsmore, of Sulphur Springs, and Coke, Miller & Coke and A. H. McKnight, all of Dallas, for plaintiff in error. Xates & Starnes, of Greenville, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

The plaintiff in error was operating passenger trains over its line of road from Greenville, Tex., to Shreveport, La.; and we will assume that Shreveport is in the state of Louisiana. For the purposes of this case, we will assume that the em-ployés engaged in operating the through trains were engaged in interstate commerce, and, in ease of injury while so engaged, the liability of the railroad company must he ascertained under the act of the Congress of the United States, known as the Employer’s Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

The defendants in error claimed that Frank Blalack, the husband of Mrs. Linnie Blalack, father of the minors, and son of Mrs. M. B. McKinney, was an agent of the express company, employed and paid by it, and entitled to ride upon defendant’s cars under the contract between the companies. The evidence, which might have been, but was not, controverted, sustained plaintiffs’ allegation, and showed that Blalack was on defendant’s train as a passenger. The railroad pleaded that Blalack was in its employ at the time; but the only proof offered was that Blalack handled baggage, which was the work of an employé. There was no proof of any employment of Blalack by the railroad company, nor of the payment of any part of his wages, nor of any right of control over him. If the facts existed, it was so easy to have produced the evidence that the failure to do so impresses upon the min’d a conviction that the claim was unfounded. The defendant was required to prove that deceased was in its employ, in order to avail itself of the federal law; and, having failed, the state law governed. All the propositions and learned arguments as to the superiority of the federal law become immaterial. This court has never questioned that the Constitution of the United States and the laws enacted by Congress in the exercise of powers derived from that Constitution are superior to the laws of this state on the same subjects. The failure to show Blalack to have been a servant of defendant renders all argument and authority on that subject superfluous. We express no opinion on that question.

In its application for writ of error, which was refused, the railroad company presented a number of assignments. Subsequently the railroad company filed a motion for rehearing of the application upon two grounds, both being based upon the general proposition that the deceased was, at the time of his death, the employé of the railroad company, and was engaged in interstate commerce ; therefore the rights of plaintiffs and the liability of defendant must be determined by the provisions of the federal Employer’s Liability Act. The rehearing was granted expressly upon that ground. In presenting the case to this court by oral argument, counsel for plaintiff in error confined themselves to that issue.

We will not review the many assignments which counsel virtually abandoned, and which we believe were correctly decided in the refusal of the application.

What was the relation between Blalack and the railroad company? The undisputed evidence is that Blalack was, at the time of his death, employed by the American Express Company as its messenger to accompany and care for its express matter on the train of the plaintiff in error. In G., C. & S. F. Ry. Co. v. Wilson, 79 Tex. 375, 15 S. W. 281, 11 L. R. A. 486, 23 Am. St. Rep. 345, Judge Stayton said: “We are of opinion that essentially the relation of carrier and passenger exists in every case in which the carrier receives and agrees to transport another, not in its employment, whether this be by contract between them, or between the carrier and some other person, in whose employment the person to be carried is, for the purpose of transacting on the train the business of his employer, as in case of mail agents, express agents or messengers and others having duties to their employers to perform which can be performed only by such persons traveling on railway trains or other public conveyances. Whether the public carrier of passengers receives an agreed compensation for the transportation of such persons, is compensated therefor by the charge for the car, or for transportation of the property of which the person to be carried has charge, or receives no compensation whatever for the carriage of such a person, is a matter of no importance. It is enough that he is lawfully on the car, and entitled to transportation, to give to him the character of passenger, and to entitle him to recover for an injury resulting from the negligence of the carrier or its servants, if this occurs without fault on his part.”

The extract fits this ease, and establishes the relation of Blalack to the railroad company to have been that of passenger. H. & T. C. Ry. Co. v. Hampton, 64 Tex. 427. Blalack being a passenger on the train, the evidence was amply sufficient to justify the jury in finding that the employes in charge of the train and of the roadbed did not exercise that high degree of diligence due to a passenger.

It .is ordered that the judgments of the district court and of the Court of Civil Appeals be affirmed.  