Atchison, T. & S. F. Ry. Co. v. Stevens

• Decision Date: 20 November 1918
• Docket Number: (No. 3080.)
• Parties: ATCHISON, T. & S. F. RY. CO. v. STEVENS.
• Court: Texas Supreme Court

206 S.W. 921

ATCHISON, T. & S. F. RY. CO. v. STEVENS.

(No. 3080.)

Supreme Court of Texas.

November 20, 1918.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Ben Stevens against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed the judgment and remanded the cause (192 S. W. 304), and defendant brings error. Judgment of reversal affirmed, and cause remanded, with direction to transfer.

Terry, Cavin & Mills, of Galveston, Turney, Culiwell, Halliday & Pollard, of El Paso, and Jno. G. Gregg, of Galveston, for plaintiff in error.

Geo. E. Wallace, P. E. Gardner, and W. S. Berkshire, all of El Paso, for defendant in error.

PHILLIPS, C. J.

The suit was one by Stevens, a non-resident, for damages for personal injuries occurring in another State against the Atchison, Topeka & Santa Fé Railway Company, a foreign corporation. It was filed in the District Court of El Paso County and was tried there, with a judgment for the plaintiff as the result.

For service upon the defendant the plaintiff relied upon the due delivery of citation to W. R. Brown, R. F. Goering, Charles Watlington and F. C. Fox, described as its agents. Each as an amicus curiæ by affidavit denied that he was such an agent. The court on hearing, held the contrary and ordered the defendant to appear and answer. Thereupon the defendant filed a plea of privilege and to the venue, denying that it was doing business in El Paso County or that it had any agent residing there, but admitting for the purposes of the plea that it was doing business in the counties of Potter, Hemphill, Galveston, Johnson and Cooke, and contending that it was suable in one of those counties if at all. The plea was overruled, and later the defendant answered on the merits.

An extended argument has been presented by the Railway Company upon the question of the trial court's jurisdiction under the service shown. In the state of the record, that is an immaterial question. A special appearance is unknown to our practice. The filing by a defendant of any defensive pleading, though it be only for the purpose of challenging the jurisdiction of the court, constitutes an appearance and a submission to the jurisdiction of the forum. York v. State, 73 Tex. 651, 11 S. W. 869. The filing by the Railway Company of its plea of privilege and later its answer was an appearance, and eliminates from the case any question of jurisdiction.

The real question in the case is one of venue. For the Railway Company to have been properly suable in El Paso County it was necessary that it have an agency or representative in that county. Under its plea it was shown not to have had an agency or representative there unless the Rio Grande, El Paso & Santa Fé Railroad Company, a Texas corporation having its principal office in El Paso, and being a part of what is known as the Santa Fé System, with the principal part of its capital stock owned by the Atchison Company, the defendant, is to be regarded as its representative, and certain persons who were agents of that company in El Paso are to be treated as its agents. Under a similar state of facts it was held by this court in Buie v. Railway Co., 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, that the parent foreign corporation should be held as doing business in Texas and as legally being in Texas through the instrumentality of the auxiliary corporation, and the agents of the latter its agents. But this ruling was expressly overturned by the United States Supreme Court, the...