Cobb v. Payne - Case Law

BRADY, J.

Mrs. Era Cobb, joined pro forma by her husband, filed her original petition March 9, 1920, against Walker D. Hines, Director General of Railroads, in an

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action to recover damages for injuries to her automobile. The collision occurred at a •crossing on the line of the Gulf, Colorado & Santa Fé Railway Company, on March 14, 1918, while such railroad was being operated and controlled by the government. No ■citation was issued upon this petition.

On April 5, 1920, an amended petition was filed in which John Barton Payne, Agent, was made the defendant. To these pleadings, the' defendant John Barton Payne, on June 8, 1920, among other defenses, invoked the two-year statute of limitation, by a Special exception and by an affirmative plea. On December 21, 1920, supplemental petitions were filed, in which the plaintiffs admitted that they had not caused citation to be issued and served until May 25, 1920, but alleged as an excuse therefor that, at the time the petition was filed, Walker D. Hines, Director General, had resigned, and that his successor was not appointed until about the 25th day of May, when John Barton Payne became the agent and representative of the government, and that immediately after his appointment process was issued and served.

To these supplemental pleadings the defendant specially excepted on the ground that the excuse pleaded was' insufficient to avoid the bar of limitation. The court sustained the exceptions, and, plaintiffs declining to amend, the suit was ordered dismissed.

Appellants claim that the court erred in sustaining the exceptions and in refusing to submit the question of their good faith and diligence as a question of fact to the jury, which they had demanded. We are of the opinion that this position is well taken, since the facts pleaded, to excuse the failure to sooner have issued and' served the process, were sufficient Appellants were entitled to a trial upon this issue; it being a question of fact for the jury where one is demanded. Panhandle Ry. Co. v. Hubbard (Tex. Civ. App.) 190 S. W. 793; Godshalk v. Martin (Tex. Civ. App.) 200 S. W. 535, and authorities there cited.

Counsel for appellee cite authorities to the effect that, in the absence of a statement of facts, it will be presumed that the ruling of the trial court was correct. Appellee admits that the action of the lower court was wholly upon the exceptions, and it is not claimed that there was any trial on the merits of this issue; therefore the authorities Cited by them are not h) point. The trial court having sustained the exceptions, and thus having decided the question of limitation, as a matter of law from the face of the pleading, there are no facts which could be said to presumably support the judgment. We do not doubt the correctness of the decisions cited, in which it has been held that, where there has been a trial and evidence heard, an appellate court cannot determine the materiality of the rulings made below on questions of evidence, pleadings, and instructions to the jury, in the absence of a statement of facts. Such cases, however, are not in point here, for that the rulings complained of involve solely questions of law, apparent of record and expressly disclosed by the judgment.

For the error indicated, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

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