Texas & Pacific Railway Company v. Mrs. M. E. Huber et al., 103 Tex. 1

Mr. Chief Justice Gaines delivered the opinion of the court. Mrs. M. E. Huber, for herself and as next friend for her minor child, Georgia Huger, brought this suit against the Texas & Pacific Railway Company and R. J. Oliphant to recover for the killing of Lawrence Huber, the husband and father respectively of plaintiffs, which killing it is alleged was occasioned by the negligence of defendant’s servants operating a locomotive engine against and over the deceased. The two defendants duly moved that the cause be transferred to the Federal Court for trial, on the ground that the Texas & Pacific Railway Company was chartered by

an Act of Congress, and the application was overruled. The case went to trial and resulted in a judgment in favor of the plaintiffs against the railway company and against them in favor of Oliphant. That judgment was reversed and the cause remanded for a new trial as to the Texas & Pacific Railway Company, but was affirmed as to Oliphant. When this case was called for trial the second time in the District Court, the Texas & Pacific Railway Company presented its petition and bond in due form for removal to the Federal Court, alleging that it was a corporation duly created by

an Act of the United States Congress. The application was again denied, and the case went to trial upon its merits and resulted in a judgment for the Texas & Pacific Railway Company, from which plaintiffs have appealed. The Texas & Pacific Railway Company cross assigned as error in the trial court the failure to transfer the case to the United States Circuit Court for the northern District of Texas. The case of Matter of Dunn (212 U. S., 374),- is the most recent decision of the Supreme Court of the United States upon this subject, and we are unable to distinguish that case from this.

That was a case in which Mrs. Dunn, for herself and others, brought suit against the Texas & Pacific Railway Company in a State District Court at Dallas, Texas, and also against C. W. Slayter and Carl Rasmussen, who were respectively engineer and fireman on the Texas & Pacific Railway, to recover damages for the negligent killing of J. J. Dunn, the husband of one of the plaintiffs and the father of the others.

An application was filed, which was joined in by all of the parties defendants, to remove the case to the Circuit Court' of the United States for the northern District of Texas, and the application was granted. Thereupon, the plaintiffs in the suit filed an application in, the Supreme Court of the United States praying that the District Judge of the United States for the northern District of Texas, and his court, be commanded to disregard the order of removal of the State court, and to dismiss the case out of his court. The application was denied and it was held that the case was properly removed.

As this is the latest decision of the Supreme Court of the United States upon the subject, we are constrained to hold that the application to remove in this case should have been granted. The judgment is therefore reversed and the cause remanded for procedure in accordance with this opinion. Reversed and remanded.