Supreme Court of Texas.
CAMPBELL et al.
April 26, 1894.
Attorneys & Firms
*630 **486 J. M. Duncan and G. H. Gould, for plaintiffs in error.
*631 H. H. Holliday and S. A. McMeans, for defendant in error.
J. M. Cook sued T. M. Campbell, then receiver of the International & Great Northern Railroad Company, alleging that on the 10th day of November, 1891, plaintiff was in the employ of the said receiver as a brakeman; that it was a part of his duty to uncouple and couple cars, and to remove coupling pins when necessary for that purpose; that I. McNeill was also in the employ of the receiver as conductor of the train on which plaintiff was working, and that said McNeill had the control and direction of the plaintiff and the said crew, whose duty it was to obey his orders. Petitioner proceeds to set out the management of the cars on that occasion which brought about the injury complained of, and that when injured he was in discharge of the duty assigned to him by the conductor, and in obedience to his orders. Facts *632 are alleged showing that the conductor was negligent, and that the injury was the result of his negligence. The injuries received are alleged as follows: ‘Breaking and crushing the bones of his hip and thigh; tearing, cutting, and lacerating his flesh; bruising, wounding, and injuring him in his back, bowels, hips, legs, and in other parts and members of his body.’ Plaintiff alleged that from the said injuries he had suffered, and would continue to suffer, great mental anguish and physical pain; that the injuries are permanent, destroyed the use of one leg, and that his capacity to labor and earn money is almost entirely destroyed. The petition also alleged that the conductor in charge of the train was unskilled, unfit, and incompetent to discharge the duties of conductor, which was known to the defendant, or could have been known by due care, and was not known to the plaintiff. The amended petition upon which the parties went to trial alleged that the receiver had been discharged, and the property returned **487 to the corporation, the International & Great Northern Railroad Company, which is made party defendant. The receiver filed a general demurrer, general denial, and special answer, setting up that plaintiff’s injuries were caused by the negligence of a fellow servant. The railroad company adopted the answer of the receiver, repeating the special answer. The court overruled the demurrer, and upon trial before a jury judgment was given for plaintiff, from which appeal was taken, and it was affirmed by the court of civil appeals.
The court did not err in overruling the demurrer, because the petition alleged that the conductor was incompetent to discharge the duties to which he was assigned, and that the defendant knew the fact, or might have known it by due care and diligence, and that plaintiff did not know of such incompetency. This was good on general demurrer, and, although the other allegations might show the conductor to be a fellow servant, defendants would be liable if guilty of negligence in employing an incompetent person for such a place whose negligence caused the injury.
At the trial the court permitted the plaintiff, over the defendants’ objections, to testify that ‘his capacity to have sexual intercourse with his wife was greatly impaired;’ to which the defendants objected, ‘because there was no allegation in the petition which would authorize the admission of such evidence, and because the petition does not claim such damages.’ It is well settled in this state that a general allegation of damages will let in evidence of such damages as naturally and necessarily result from the wrongs charged, but to admit proof of damages which do not necessarily result from the injury alleged the petition must set up the particular effects claimed to have followed the injury. Railway Co. v. Curry, 64 Tex. 87. The object of pleading is to notify the opposite *633 party of what it is expected to prove on the trial. In this case there was no injury alleged to have been inflicted upon any organ or member of the body from which such ‘impairment’ would naturally, not to say necessarily, follow. The court erred in admitting the evidence.
The judge of the district court charged the jury, in substance, that if the conductor of the train on which plaintiff was employed as brakeman was by the defendants intrusted with the direction and control of plaintiff in the discharge of his duties as brakeman, and if plaintiff’s injuries were caused by the negligence of the conductor while engaged as such, plaintiff could recover from the defendants for such injuries. The defendants asked the court to charge the jury to the contrary of this proposition, which was refused. The giving of the charges by the court and refusing those asked by defendants are assigned as error. On the 10th day of March, 1891, the legislature passed the following act: ‘An act to define who are fellow servants and who are not fellow servants. Tadlock v. Eccles, 20 Tex. 793.
The last and most important question is, does the language of the act include receivers of railroad companies? It is clear that the words ‘railway corporations’ do not mean ‘receivers of railway corporations.’ How, then, is the construction to be arrived at that will embrace such receivers in the provisions of the act? Grant that the legislature intended to embrace receivers, but failed to use apt words to express that intention. Can the court import into the statute a case omitted from it by the legislature, even by accident? How can the court determine that it was not intentionally omitted? In Sutherland on Statutory Construction (section 430) it is said: ‘Liberal construction is given to suppress the mischief and advance the remedy. For this purpose, as has already been said, it is a settled rule to extend the remedy as far as the words will admit, that everything may be done in virtue of the statute in advancement of the remedy that can be done consistent with any construction. Where its words are plain, and clearly define its scope and limit, construction cannot extend it; or *635 where the language is so explicit as to exclude any reasonable inference that such extension was intended.’ Lord Brougham said: ‘If we depart from the plain and obvious meaning, we do not construe the act, but alter it. We supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it.’ In Turner v. Cross, 83 Tex. 224, 18 S. W. 578, Chief Justice Stayton expressed the same rule in this clear and forcible language: ‘It is the duty of a court to administer the law as it is written, and not to make the law; and, however harsh a statute may be, or whatever may seem to be its omission, courts cannot, on such considerations, by construction restrain its operation, or make it apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government.’ It is unnecessary to multiply authorities upon this question. The law is valid, is expressed in plain words, and must be taken and enforced by the courts according to its terms. The legislature has since amended it, but that does not affect it as applicable to this case. In the two sections of the statute, quoted above, the employer whose liability is enlarged is mentioned eight different times in various connections, and each time the language used, ‘railway corporations,’ or ‘such corporations,’ referring to railway corporations, as used before. In no part of the act is there a word which indicates that any other than railway corporations were intended. This language cannot be so changed as to embrace an officer of the court, who is in no sense a corporation, because the reasons for the law apply equally to both. To supply the word ‘receiver’ in one place would not answer the purpose, if that were allowable (which it is not), but it must be supplied in eight different places, and with reference to the various conditions in which the employer is related to the employe.
Counsel refer to Church of Holy Trinity v. U. S., 143 U. S. 465, 12 Sup. Ct. 511, to support the construction contended for; but in that case the words ‘labor’ and ‘service’ were used, which in their broadest sense would include the services of a rector. The court there determined that the congress did not use the words in this sense, and gave to them the meaning commonly applied, which was consistent with the recognized rules of construction.
The district court erred in its instructions given to the jury and in refusing those asked by the defendants.
Defendant in error claims that because the conductor had superintendence over the brakeman, be was not a fellow servant, independent of the statute. It is not alleged in the petition, or found as a fact, that the conductor had authority to employ or discharge brakemen. According to the rules laid down in the decisions of this court, the *636 plaintiff and the conductor upon the same train were fellow servants in the state of facts set up in plaintiff’s petition. The judgments of the district court and the court of civil appeals are reversed, and this case is remanded to the district court for further proceedings herein.