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

• Decision Date: 25 January 1917
• Docket Number: (No. 644.)
• Citation: 192 S.W. 304
• Parties: ATCHISON, T. & S. F. RY. CO. v. STEVENS.
• Court: Texas Court of Appeals

192 S.W. 304

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

(No. 644.)

Court of Civil Appeals of Texas. El Paso.

January 25, 1917.

On Rehearing, February 15, 1917.

Appeal from District Court, El Paso County; Dan M. Jackson, Judge.

Action by Ben Stevens against the Atchison, Topeka & Santa Fé Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded, and opinion modified on application for rehearing, but rehearing denied.

Turney & Burges, of El Paso, and 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.

Stevens filed suit against appellant in the district court of El Paso county, Tex., to recover damages arising from personal injuries. He alleged that he resided at Las Vegas, N. M., and that defendant was a foreign corporation duly incorporated and having a local agent and maintaining an office in El Paso county, Tex.; that it owned and operated a line of railroad extending from El Paso, Tex., northerly, through the state of New Mexico and from the state of New Mexico across the northerly part of Texas, where it maintained an office and had a local agent; that W. R. Brown and R. F. Goering were local agents of defendant in El Paso county, and F. C. Fox was its general manager and resided at Amarillo, Tex.; that it also had a number of conductors who were operating trains over defendant's line of railway from San Marcial, N. M., to and into El Paso county, Tex.; that defendant was engaged in interstate commerce. The plaintiff further alleged that on August 22, 1914, he was in defendant's employment as a locomotive fireman, and upon that date, while in the discharge of his duties, he sustained personal injuries in the state of New Mexico through defendant's negligence, whereby he was damaged in the sum of $30,000, for which he sought judgment. Upon this petition, citations were issued and served in due form upon said Brown, Goering, Fox, and a conductor named Watlington, the same having been served in time to require answer to the May term, 1915. At the May term, Brown, Goering, Fox, and Watlington 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 the defendant owned or operated a line of railroad in Texas, and denied that it was doing business in Texas.

Upon hearing of the issues raised by the amici curiæ much evidence was offered which, under the view entertained by us, it is unnecessary to state in detail.

At the 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 rights to insist upon said affidavits, then and there in open court 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 not 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 defendant 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 suggestions 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 of said counties 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 took an exception and was allowed 60 days 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 January 3, 1916, it filed its first amended original answer upon the merits.

The cause came on for trial at the January term, 1916, resulting in verdict and judgment for $7,500 in plaintiff's favor, from which the defendant prosecutes this appeal.

Appellant first challenges the jurisdiction of the courts of Texas. The cause of action is transitory, and the district court of El Paso county had jurisdiction over the subject-matter. Railway Co. v. Sowers, 213 U. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695. In this case Sowers, a citizen of Arizona, sued this same defendant in the district court of El Paso county, Tex., and obtained judgment for damages arising from personal injuries received by him in the territory of New Mexico. In that case Mr. Justice Day said:

"An action for personal injuries is universally held to be transitory, and maintainable wherever a court may be found that has jurisdiction of the parties and the subject-matter. Rorer, Interstate Law, 154, 155; McKenna v. Fisk, 1 How. 242, 11 L. Ed. 117; Dennick v. Central R. Co., 103 U. S. 11, 18, 26 L. Ed. 439, 441. Undoubtedly, where the cause of action is created by the state, as is the action to recover for death by wrongful injury, there is no objection to the enforcement of the law because it arose in another jurisdiction. Northern P. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Stewart v. Baltimore & O. R. Co., 168 U. S. 445, 449, 18 Sup. Ct. 105, 42 L. Ed. 537, 539."

So there remains only to be determined whether the court lawfully acquired jurisdiction over the defendant's person. In the disposition of this question, it may be assumed, under the authority of the United States Supreme Court decisions, that the parties upon whom the citations were served were not agents of defendant, that defendant was not doing business in Texas, and therefore jurisdiction over the person of defendant was not acquired by the service of that process.

But under the authority of York v. State, 73 Tex. 651, 11 S. W. 869, it must be held that the defendant submitted its person to the jurisdiction of the Texas courts by its action in filing a plea of privilege and answer to the merits after the suggestion of the amici curiæ had been overruled. If the action of the court in overruling the suggestion was erroneous, the defendant was under no obligation to appear. When it did appear it submitted itself to the jurisdiction of the court, and any question as to the sufficiency of the service and jurisdiction over the person was thereby eliminated. The plea of privilege having been filed and overruled at the November term, 1915, service was perfect at the January term, 1916. Railway Co. v. Blocker, 138 S. W. 156, and cases there cited. York v. State was carried to the Supreme Court of the United States, and it was there held that the construction by the state Supreme Court of the statutes upon which the ruling in the case was based must be accepted as correct, and that the only federal question involved was the power of the state in respect thereto. It was further held that the statutes did not contravene the Fourteenth Amendment to the federal Constitution, and the judgment of the Texas court was upheld. York v. State, 137 U. S. 15, 11 Sup. Ct. 9, 34 L. Ed. 604. The Supreme Court of the United States in the very recent case of Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 35 Sup. Ct. 37, 59 L. Ed. 220, reviewed and reaffirmed its previous holding in York v. State. So far as we are advised, the correctness of the ruling in the case has never been successfully challenged. The principle there announced has been applied in many cases subsequently arising, and was approved in the recent case of Banco-Minero v. Ross, 106 Tex. 522, 172 S. W. 711.

Upon the jurisdictional question, Railway Co. v. Blocker, supra, is parallel to this case. In that case, in which a writ of error was denied, Judge Hodges said:

"The first assigned error complains of the ruling of the court upon the affidavit of Upton as amicus curiæ in holding that the service upon him was sufficient, and in requiring the appellant to file an answer. This order was entered before any answer was filed or appearance entered by the defendant for any purpose. It is not easily perceived how the defendant in that situation could have been injuriously affected by any action of the court in the ruling complained of. If Upton at the time citation was served upon him was not the representative of the appellant, the service upon him was a nullity, and conferred no right upon the court to render a personal judgment against it. When called upon to make some order, or to render some judgment, that would affect the rights of the defendant in the suit, it became the duty of the court, without any suggestion from an amicus curiæ, to ascertain whether by service...