
    ST. LOUIS, S. F. & T. RY. CO. v. SEALE et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 15, 1912.
    On Rehearing, June 22, 1912.)
    .1. Master and Servant (§ 256) — Injuries to Employé — Actions—What Law Governs.
    Where' the petition in an action for the ■death of a railroad employé does not disclose that the suit is based on the federal Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), it will be held that plaintiff is not .seeking recovery for an injury received while engaged in interstate commerce, and the sufficiency of the petition must be tested by the ■state law.
    [Ed. Note. — For other cases, See Master and .Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.]
    2. Parties (§ 76) — Want op Capacity to Sue — Plea in Abatement.
    Where no plea in abatement for want of capacity in plaintiffs to maintain the suit was filed, as required by Rev) St. 1895, arts. 1268, 1269, defendants’ requestéd instruction for a ■directed verdict because of plaintiffs’ alleged incapacity to prosecute the suit was properly refused.
    [Ed. Note. — For other cases, see Parties, ■Cent. Dig. §§ 117-121; Dec. Dig. § 76.]
    3. Master and Servant (§ 262) — Injury to Employé — Defenses—Pleading.
    Where, in an action in the state court for the death of a railroad employé, plaintiffs set forth in their petition a fact entitling them to recover under the statutes of Texas, and the defendants did not plead the federal Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), defendants could not invoke the federal statute to defeat the plaintiffs’ right- of mcovery.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 855-859; Dec. Dig. § 262.]
    4. Death (§ 31) — Persons Entitled to Sue — Beneficiaries.
    The fact that an action under the state statute for the death of a railroad employé was brought in the name of the real beneficiaries, and not in the name of some administrator or executor of the decedent’s estate, did not prevent a recovery.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35-46, 48; Dec. Dig. § 31.]
    On Rehearing.
    5. Commerce (§ 27) — Railroads — Employer’s Liability Act.
    Where a switchyard clerk while taking ■data from cars, some of which had just arrived from outside the state, but none of which were shown to be destined for any such points, was killed by a switch engine operated by the local switch crew, the cause of action for his death was not controlled by the federal Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, ■35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]); the defendant railroad company in its relation to the accident not being engaged in interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.]
    Appeal from District Court, Grayson ■County; B. L. Jones, Judge.
    Action by Maude Seale and others against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare & Head, of Sherman, for appellant. Wolfe, Maxey, Wood & Haven, of Sherman, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAINEY, -C. J.

Appellees sued the appellant to recover damages for the negligent killing of Memory T. Seale, who was the son of T. H. and J. E. Seale, and the husband of Maude Seale. A trial was had and a verdict and judgment were rendered for plaintiffs, and defendant appeals.

Appellant complains of the action of the court in overruling its second and third special exceptions to plaintiffs’ petition, on the ground that.said petition did not show that at the time of the accident whether or not defendant was engaged in interstate commerce, and whether or not deceased was engaged in handling said commerce.

The proposition submitted by appellant under said assignment is: “If defendant was engaging in the transportation of interstate commerce, and deceased was in its employ in connection therewith at the time he was injured, the cause of action and defendant’s liability would be governed by and founded upon the act of Congress passed April 22, 1908, entitled ‘An act relating to the liability of common carriers by railroads to their employés in certain cases,’ while, if defendant was not so engaged, the rights of the parties would be governed by and founded upon the death and assumption of risk statutes and other laws of the state of Texas. These laws being different, the defendant, by special exception, had the right to require plaintiffs to allege in their petition such facts as would enable it to determine which of these laws applied.” We do not think the court erred in overruling the exceptions as stated. The action was brought under the state law and the petition stated a good cause of action, and was not subject to the exceptions presented. This precise question was passed upon by this court in the case of Railway Co. v. Neaves, 127 S. W. 1090, and a writ of error was denied by our Supreme Court; the holding in said case being contrary to appellant’s contention.

The evidence shows that at the time Memory T. Seale was killed he was in the employ of appellant in the capacity of yard clerk in the yards in North Sherman, Gray-son county, Tex. While in the discharge of his duties as such clerk he was struck and killed by appellant’s servants in the negligent operation of an engine. The court did not err in charging the jury that deceased had just gone to work as yard clerk for appellant. The evidence shows he was killed at night when he had been at work for the first time in that capacity about forty minutes. We think the evidence such that the issue of discovered peril was raised, and tlie court did not err in charging on that issue.

The trial court refused a special charge requested by appellant, of which it complains, said charge reading: “The plaintiffs in this case are not shown to be the legal representatives of the deceased, M. T. Seale, and are not entitled to prosecute this suit, nor to recover in any sum, and you will therefore return your verdict in favor of defendant.” The proposition submitted thereunder is: “The deceased, at the time of receiving the injuries which caused his death, was engaged in interstate commerce, and the cause of action, if any, arising on account of his death is based upon, and controlled by, the act of Congress approved April 22, 1908, entitled ‘An act relating to the liability of common carriers by- railroads to their employes in certain cases,’ commonly called the ‘Federal ■ Employer’s Liability Act,’ and not the Texas death statute, which was superseded by the said act of Congress as to causes of action coming within its terms, and, since the plaintiffs have not brought themselves within the provisions of said act, there can be no recovery on their part in this suit.” We are of the opinion that the court did not err in refusing said charge. There was no filea in abatement for the want of capacity in plaintiffs to maintain this suit, which was necessary under our statutes to take advantage of such defedts, if any, and which plea should be filed in due order of pleading. Rev. St., arts. 1268, 1269; Blum v. Strong, 71 Tex. 328, 6 S. W. 167.

The statutes of Texas authorize a recovery by plaintiffs as set forth in their petition, and there was no pleading by defendant setting forth as a defense to said cause the act of Congress approved April 22, 1908, entitled “An act relating to the liability of common carriers by railroads to their employés in certain cases,” commonly called the “Federal Employer’s Liability Act,” which act, whatever effect it may have upon the state statutes, cannot be invoked to defeat plaintiffs’ right of recovery in this suit, as it was in no way pleaded by defendant.

The plaintiffs are the real beneficiaries. The fact that the suit was not brought in the name of some administrator or executor of the estate of Memory T. Seale, deceased, should not prevent a recovery.

All assignments not mentioned herein have been considered, but none present reversible error.

The evidence supports the verdict, and the judgment is affirmed.

On Rehearing.

Appellant insists that the facts of this case bring it within the act of Congress approved April 22, 1908, known as the “Federal Employer’s Liability Act,” and the samé-is controlled by its provisions. As said by Mr. Chief Justice Brown in the case of M., K. & T. Ry. Co. of Texas v. Blalack (Sup.) 147 S. W. 559, recently decided: “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 on the same subjects.” We are of the opinion, however, that the facts-in this case do not bring it within the purview of the federal statute. The deceased was run over and killed by a switch engine operated in the yards of appellant in Sherman, Tex. He was working under T. A. Gribble, who was chief clerk out at those yards, and in charge of the same. Deceased’s work was done in connection with the clerks in the yards, and with the switch crew. After a train was brought in, it was delivered to the switch crew. The first act was to obtain the numbers of the cars and make a record of them in the office. Then the switch crew began the work of tearing the train up and making new trains. He got the numbers and initials of each car that came in and went out of the yards. When a train comes in the yards, he goes out and gets the number and initials of each car, and gets the seals that are on the car doors. Whatever impression is on the seal he keeps in his book that he carries. He gets the number of the train. He gets the cars that are made out for this train according to the conductor’s switch list. He puts the cards on the cars in order that the switchman may switch the train properly. After he does that, he goes in the office and cheeks his list, checks his book in the office with the train clerk, and also enters his seals. It is done in order to keep records. A train was coming in from Oklahoma at that time. It was a freight train. The North Sherman yards were the terminal for that train; that is, that was the end of the run of that train. If any trains went south, they were made up in the yards, new trains, and sent south, or other trains made up and sent north. The evidence does not show that any of the cars in the train coming in were destined for other points. Such being the evidence, this case is not controlled by said federal act.

The motion for rehearing is overruled.  