
    ST. LOUIS SOUTHWESTERN RY. CO. v. BROTHERS.
    (Court of Civil Appeals of Texas. Dallas.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    1. COMMERCE (§ 27) — Employers’ Liability Act> — Employé in Interstate Commerce.
    B., employed by defendant carrier as an “extra” brakeman, at all times subject to call, with headquarters at C., paid for his services from the time he started on a trip till returned to C., having been sent out as a brakeman on ' a train engaged in interstate commerce, was, at the time of his injury, when being sent back on a pass to C., on a train of defendant engaged in interstate commerce, not a passenger, but an employé, engaged in interstate commerce, so that action for his death therefrom is governed by the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]
    2. Death (§ 31) — Actions—Plaintiff—Federal Employers’ Liability Act.
    Under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), action for death,of an employé from injury received while engaged in interstate commerce, maintainable only by the personal representative of deceased, must be by his administrator or executor, though he left no estate, and cannot be by relatives in their individual capacity.
    '[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35, 37-46, 48; Dec. Dig. § 31.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by C. E. Brothers against the St. Louis Southwestern Railway Company. From an adverse judgment, defendant appeals.
    Reversed and remanded.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. O. O. Mulkey, of Commerce, and Evans & Carpenter, of Greenville, for appellee.
    
      
      For o til or cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   RASBURY, J.

In view of what we consider to be the controlling issue in this case, a sufficient statement of the pleading is that O. E. Brothers sued appellant for damages for personal injuries caused by cinders being blown into his eye while upon one of appellant’s trains en route from Ft. Worth to Commerce, Tex., as the result of appellant’s negligence in the operation of its \;rain. About 5% months after Brothers’ injury, and about two months after the suit was filed, he died, and his parents, Hence and Maggie Brothers, intervened in the suit, alleging his death • and that it resulted from the injuries detailed, and sought damages therefor.

Appellant pleaded in abatement of the suit that it was a common carrier of freight and passengers, and C. E. Brothers its employs at the time of his injury, both engaged at that time in transporting interstate freight and passengers, and that interveners could not for that reason prosecute the suit in their individual capacities, but that same could only be maintained by the personal representative of the deceased, as provided by the terms of the federal Employers’ Liability Act. Appellant further urged, subject to its plea in abatement, its special exception, asserting that the petition was insufficient, because it failed to allege facts which would authorize interveners to prosecute the suit.

Interveners, in response to the plea in abatement, averred that there was no administration pending upon the estate of C. E. Brothers, and no necessity therefor, since at the time of his death he owned no property whatever, nor were any debts due him by others; and further that, at the time he was injured, he was not in the service of appel-Jant, but was traveling as a passenger upon one of appellant’s trains, and as a consequence the federal rule did not apply.

Appellant’s plea in abatement, upon hearing, was overruled, as was also the special exception upon argument. There was trial by jury, with verdict for interveners followed by like judgment, from which this appeal is prosecuted.

The facts essential to a disposition of this appeal, and which are undisputed, are in substance as follows: Appellant is, and was at the time Brothers was injured, a common carrier of freight and passengers, engaged in both interstate and intrastate business or commerce. Prior to and at the time Brothers was injured, he resided at Commerce, and at the time of such injury he was employed by appellant as “extra” brakeman. Preceding the day on Which Brothers’ eye was injured, he served as brakeman for appellant on a train from Texarkana to Ft. Worth. The train came from Little Rock, Ark., to Tex-arkana over the St. Louis Southwestern Railway Company and from Texarkana to Ft. Worth over the line of the appellant, St. Louis Southwestern Railway Company of Texas. The train on which Brothers served as brakeman from Texarkana to Ft. Worth was a passenger train and had on board interstate passengers destined for points within Texas, being in fact an excursion train returning from a reunion of Ex-Confederate soldiers from Little Rock. The train reached Ft. Worth, which was its final destination, about midnight. Brothers spent the remainder of the night in Ft. Worth. The following morning he received a “pass” from appellant,. which authorized him to return over appellant’s line of railway to Commerce. For that purpose he boarded one of appellant’s regular passenger trains at Ft. Worth and did return thereon to Commerce. En route the cinder that caused his injury was lodged m his eye. The train on which he returned was engaged in interstate commerce. Brothers performed no service whatever on the train that returned him from Ft. Worth to Commerce, but by the terms of his employment appellant, nevertheless, paid him for his services from the time he left Texarkana until it returned Mm to Commerce, as if actually in service, furnisliing Mm as well transportation from Ft. Worth to Commerce. Commerce was a terminal of appellant and the place where Brothers received orders, and he was instructed by Ms superior when he left Ft. Worth to report to the proper officials at Commerce for further orders in line with his employment. Brothers arrived at Commerce at 1 p. m. of the same day, remaining there until 11:45 p. m., when he was sent out on an extra freight train; Ms run being from Commerce to Mt. Pleasant, which train was engaged in interstate commerce. Brothers returned from Mt. Pleasant the next day. on a train also engaged in interstate business.

Thus it will be seen that the evidence in the record, and which we have stated in substance, discloses without conflict whatever that the train on wMch Brothers served as extra brakeman was engaged in interstate commerce. It, in like manner, discloses that the train on which he was traveling back to Commerce under instructions of his superiors to there report for further duty was also engaged in interstate commerce. And finally that the train upon wMch he begun his duties after arriving at Commerce was also engaged in such commerce. The facts related being true, appellant asserts that the court should have sustained its plea in abatement, and, if not, then its special exception, both of which asserted that interveners’ cause of action, if any they had, arose under the act of Congress of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1911, p. 1322]), and that the case should not have been tried by any rules other than those prescribed by said act. Counsel for interveners in no respect challenge the facts we have stated as being undisputed, but take the position here, as they did in the court below, that Brothers was in no sense in the employ or actual service of appellant at the time he received his injuries, but in fact a passenger, and that appellant owed him, at the time he received Ms injury, that high degree of care wMch a very careful, cautious, and prudent person would have exercised under the same or similar circumstances in transporting passengers for hire. By the rule just stated the case was tried in the court below. Accordingly, under the facts just recited, and in order to determine £he issues raised by counsel for appellant, it becomes necessary to determine whether Brothers, at the time he received his injuries, was in legal contemplation in the employ of appellant, since, if he was, a rule at variance with the one by which the case was submitted applies.

It is undisputed, as we have said in our findings of fact, that Brothers was regularly in the employ of appellant serving as extra brakeman. Under the terms of his employment, he was at all times subject to the call of his master for .the performance of such duties as should be assigned him in line with such employment. When called to duty, his time and pay was allowed until he returned to Commerce, his home and place of employment, whether actually at Ms work or not. The day prior to his injury he was directed to serve on a train from Texarkana to Ft. Worth, wMch he did, arriving at Ft. Worth about midnight, which concluded the run. The following morning he was directed to proceed back to Commerce and report for duty. He did so (being injured en route), arriving at Commerce about 1 p.'m., going out on duty again at midnight on another extra run. Also, as we have said, he did no actual work in the operation of the train but occupied a seat in a coach as any other passenger. Then, was Brothers, under the construction placed upon such matters by the Supreme Court of the United States, in appellant’s employ at the time he was injured, for, in determining whether the federal Employers’ Liability Act applies, it is necessary to consider the decisions of that court affecting Brothers’ relation to appellant at the time of his injuries, since that rule under the national Constitution is supreme? We conclude he was.

In Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, 116 C. C. A. 156, it is said, in effect, that there are cases that hold that an employe of a railroad company, while going to and from his work, is not engaged in the service of his master, and those that hold to the contrary, but that, whatever may be the conflict concerning ordinary cases, “there can be no question that he is in the service of his master * * * whenever he is doing that which, under his contract of employment, he is bound to do.” In the cited ease the plaintiff was an engineer who w>as on his way, under orders of his superiors, to board a train, which would transport him to another station, at which latter place he would assume his duties as engineer for the defendant company, but while in the company’s yards, and before boarding the train to depart for the point where he would assume his duties, he was injured. There was a verdict in the trial court for defendants and writ of error to the United States Circuit Court of Appeals, where the case was reversed and remanded, and for that reason did not reach the Supreme Court of the United States, but the latter court in Pederson v. Delaware Lackawanna & Western Railroad Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, cites the decision approvingly upon a similar issue, and for that reason is, we think, decisive of the issues in the instant case, since the facts in the Lamphere Case and the instant case cannot be intelligently differentiated.

In the instant case, Brothers went to Tex-arkana in order to do that which his contract required him to do. Arriving at Ft. Worth, the end of his run, he was directed to return to Commerce and there report for further duty, which his contract also bound' him to do, and for doing which he was compensated. As did Lamphere, he commenced his journey, and was injured while en route, and unuer the rule stated and the contract of employment it cannot be said that the relation of carrier and passenger existed, even though Brothers was on a passenger train and performing no actual service, since he was there as a servant receiving compensation and entitled to be on the train solely because of his employment. Such is the federal rule. And, when we turn to the cases in our state courts, we find an unbroken and uniform line of cases holding in consonance with the federal rule that employes, while proceeding to and from the place where their tasks are performed, are in the service of the master and entitled to the benefits and charged with the burdens of the law of this state between master and servant. M., K. & T. Ry. Co. of Tex. v. Rentz; 162 S. W. 959, and cases cited. Most of the cases which hold that the servant is in the employ of the master while going to and from his work were constructions originally for the protection of the servant, and proceed upon the theory that going to and from work is an essential ingredient of the servant’s contract of employment and incidental to it, and in the use and enjoyment of which he is to be protected by the laws relating to master and servant. In the instant case transportation over appellant’s line of railway was the means afforded Brothers for the performance of his service, and it was only because he was the employs of appellant that he was entitled to such right and privilege.

Being, then, of opinion that both appellant and Brothers, at the time the latter was injured, were engaged in interstate business or commerce, it follows that interveners were not entitled to prosecute the suit for damages after his death, in their individual capacities and as next of kin of Brothers, since it is the settled rule, in all cases arising under the federal act, that such suits may be maintained only by the personal representative of the deceased, meaning administrator, executor, etc., notwithstanding the decedent left no estate, and those instituting the suit are all who may, under the law of the forum, recover any such damages. American” Railroad Co., etc., v. Ann Elizabeth Birch et al., 224 U. S. 547, 32 Sup. Ot. 603, 56 E. Ed. 879; Rivera v. A., T. & S. E. Ry. Co., 149 S. W. 223; G., O. & S. E. Ry. Oo. v. Lester, 149 S. W. 841; Kansas City, M. & O. Ry. Oo. v. Pope, 152 S, W. 185; Eastern Ry. Co. of N. M. v. Ellis et al., 153 S. W. 701. Accordingly it becomes our duty to reverse the judgment and remand the ease to the lower court for such proceedings as are not inconsistent with the views here expressed; and it is so ordered.

Reversed and remanded.  