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

• Citation: 192 S.W. 310
• Decision Date: 01 February 1917
• Docket Number: (No. 657.)
• Parties: ATCHISON, T. & S. F. RY. CO. v. AYERS.
• Court: Court of Appeals of Texas

192 S.W. 310

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

(No. 657.)

Court of Civil Appeals of Texas. El Paso.

February 1, 1917.

Rehearing Denied February 15, 1917.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by A. E. Ayers against the Atchison, Topeka & Santa Fé Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Turney & Burges, of El Paso, A. H. Culwell and Terry, Cavin & Mills, all of Galveston, for appellant. Geo. E. Wallace, P. E. Gardner, and W. S. Berkshire, all of El Paso, for appellee.

HIGGINS, J.

Ayers filed this suit against appellant in the district court of El Paso county, Tex., to recover damages arising from personal injuries. He alleged that he resided in the state of Oklahoma, and that the defendant was a foreign corporation, duly incorporated, owning and operating a line of railroad extending from Barstow, Cal., through the states of California, Arizona, and New Mexico, to and into the city and county of El Paso in the state of Texas, where it maintained offices and agents who were engaged in carrying on the business of defendant in said El Paso county, pertaining to the operation of its line of railroad; that W. R. Brown was its general agent in said county, R. F. Goering its local agent, and J. S. Morrison is ticket agent; that each of said parties resided in El Paso county and maintained their offices there, and were engaged in selling tickets and making contracts for the transportation of goods and merchandise over defendant's different lines of railroad; that in addition to said named agents, the defendant had other agents who resided in said El Paso county, to wit, conductors of its trains that were run and operated into El Paso, Tex., and into Albuquerque and San Marcial, N. M.; that said conductors operated said trains from San Marcial and Albuquerque across the state line into El Paso county Tex. It was alleged that defendant also operated one of its lines of railway in Potter county, Tex., where it maintained an office and local agency, and where its general manager, F. C. Fox, resided and had his office.

Plaintiff further alleged that on April 15, 1915, he was in defendant's employment as a car inspector at Barstow, in the state of California, and upon that date, and at said place, while in the discharge of his duties he sustained personal injuries through defendant's negligence whereby he was damaged in the sum of $25,000, for which he sought judgment. Upon this petition, citations were issued and served in due form, upon R. F. Goering, J. S. Morrison, F. C. Fox, and a conductor named Bittrein, the same having been served in time to require answer to the November term, 1915.

At said term the parties upon whom the citations had been served appeared as friends of the court, and for its information filed affidavits denying that they were agents of defendant. The affidavit of Fox further denied that defendant owned or operated a line of railroad in Texas, and denied that it was doing business in Texas.

Upon hearing of issues raised by the amici curiæ, much evidence was offered, which it is unnecessary to state in detail. At said November term, on, to wit, December 18, 1915, the court entered an order that the affidavits of the amici curiæ—

"be overruled and held for naught, and that the defendant company be required to appear and answer herein, to which action of the court the defendant without waiving its right to insist upon said affidavits then and there excepted. It is further ordered by the court, for cause shown, that defendant be allowed sixty (60) days after the adjournment of this term of this court to prepare and file its statement of facts and bills of exceptions." Italics ours.

By bill of exception, it is also shown that when the affidavits of the amici curiæ were overruled —

"defendant then and there in open court excepted and tenders this its bill of exception, and says that the court in holding that it had no jurisdiction of this cause, as shown by the evidence and the affidavits of the amici curiæ, who were served as agents of defendants in this cause, and who appeared as friends of the court and filed their affidavits showing that at the time of the service the defendant herein was not doing business in El Paso county, had no agent in El Paso county, Tex., upon whom proper service could be made, and that said parties so served were not such agents, and that service upon them would not require defendant to answer herein, all of which has been shown by the evidence offered on said hearing, and the court erred in assuming jurisdiction over the defendant, and in ruling that the defendant should answer herein, to all of which rulings of the court, the defendant having at the time excepted, here now presents this its bill of exception, and prays that the same be allowed and made a part of the record herein."

On December 18, 1915, and after the court had overruled the suggestion of the amici curiæ, the defendant filed a plea of privilege claiming the right to be sued in either of the counties of Potter, Hemphill, Galveston, Johnson, or Cooke, admitting, for the purpose of that plea, that it was doing business in those counties, and that the district courts thereof had jurisdiction over its person, and that it could be sued therein.

On the date of its filing, the plea of privilege was overruled, to which action the defendant in open court excepted and was allowed 60 days after adjournment in which to prepare its statement of facts and bills of exception. The record does not contain the defendant's first original answer, and is silent as to the date upon which it was filed, but on April 6, 1916, it filed its first amended original answer to the merits. The case came on for trial at the March term, 1916, resulting in verdict and judgment for $9,000 in plaintiff's favor, rendered April 19, 1916, from which the defendant prosecutes this appeal.

Appellant first challenges the jurisdiction of the courts of Texas. In the disposition of this question, it is assumed, under authority of the United States Supreme Court decisions, that the parties upon whom the...