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

• Decision Date: 04 March 1905
• Citation: 86 S.W. 38
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. WILLIAMS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 38

ATCHISON, T. & S. F. RY. CO. et al. v. WILLIAMS et al.^*

Court of Civil Appeals of Texas.

March 4, 1905.

Appeal from Midland County Court; L. M. Murphy, Judge.

Action by W. H. Williams and others against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs, the Atchison Company appeals. Affirmed.

Ed. J. Hamner and J. W. Terry, for appellant. Hawkins & Isaacks, for appellees.

CONNER, C. J.

Plaintiff instituted this suit on December 14, 1903, against the Texas & Pacific Railway Company, the Gulf, Colorado & Santa Fé Railway Company, and appellant, for damages to a shipment of cattle made from Monahans, Tex., to Ft. Worth, Tex., over the line of the Texas & Pacific Railway Company, and from Ft. Worth, Tex., to South St. Joseph, Mo., over the lines of the Gulf, Colorado & Santa Fé Railway Company and the appellant. The Texas & Pacific Railway Company pleaded general demurrer and general denial and special answer, alleging a contract limiting its liability. The Gulf, Colorado & Santa Fé Railway Company pleaded its privilege, which was substantially the same as the plea of privilege filed by appellant, which said plea was by the court overruled. The appellant pleaded its privilege to be sued in El Paso county, Tex., which was by the court overruled. The court, at the instance of the Texas & Pacific Railway Company and the Gulf, Colorado & Santa Fé Railway Company, gave special instruction to the jury to find for these companies, for the reason that there was no evidence showing any loss, negligence, or damage accruing to plaintiffs' cattle on their lines of railway; no objection to this action of the court being made by appellees or by appellant. The trial resulted in a judgment for appellees against appellant for $450.03.

The principal contention in this case arises under the first and seventh assignments of error, complaining of the action of the court in refusing to sustain appellant's plea of privilege, as shown by its bill of exception No. 1.

The shipment was a through one, and a joint liability was alleged. The facts show, as was alleged in the plea of privilege, that appellant operates, under a lease approved by the Texas Railroad Commission, the railroad of the Rio Grande & El Paso Railway Company, extending from the boundary line of the state of Texas to El Paso, a distance of about 20 miles; appellant not otherwise owning or operating any railroad in Texas. The plea of privilege also alleged that the plaintiff had falsely and fraudulently joined in the suit the Texas & Pacific Railway Company for the sole and only purpose of giving jurisdiction over the person of appellant in Midland county. There was no affirmative proof of this averment of a fraudulent joinder, unless such may be inferred from the fact that the court gave the special instructions mentioned, and that the verdict and judgment was in favor of the Texas & Pacific Railway Company and the Gulf, Colorado & Santa Fé Railway Company. Appellant's proposition of error is, in substance, that jurisdiction over appellant in Midland county was defeated by the mere fact that no liability was shown against the Texas & Pacific Railway Company; it being appellant's further contention that the leasehold interest in the railroad of the Rio Grande & El Paso Railway Company, above mentioned, is not such ownership or interest as brings it within the terms of the act of 1899.

We think the assignments and contentions above noted must be overruled. The act approved May 20, 1899 (Laws 1899, p. 214, c. 125), providing the venue of suits against railroad companies, specifically declares that whenever any freight, baggage, or other property has been transported over two or more railroads operating any part of their roads in this state, or operated by any assignee, trustee, or receiver of any such railways, suit for loss or damages arising out of such transportation may be brought against any one or all of such railroads in any county in which either of such railroads extends or is operated. Under the facts of this case the act mentioned seems to clearly confer the right to sue appellant in Midland county. To say the least of it, it is equally authoritative with the venue statute upon which appellant predicates its plea of privilege. It seems clear to us, upon the face of appellee's petition, that the court of Midland county had jurisdiction, and that, in order to defeat it, and for appellant to avail itself of the general provision of the statute conferring upon it the privilege of being sued in El Paso county, where it alleged in its plea of privilege it had an agent, it was necessary not only to allege, but to prove, that the Texas & Pacific Railway Company, whose line was operated through Midland county, was joined for the fraudulent purpose of giving jurisdiction. And we do not think that such proof is made by merely showing upon the final trial that liability in fact did not exist against the Texas & Pacific Railway Company. In this particular case the court instructed the jury to find for the Texas & Pacific and the Gulf, Colorado & Santa Fé Railway Companies, but no complaint is made of such instruction; and it may have been predicated upon circumstances not appearing which entirely justified the instruction, and which also were entirely consistent with the allegation of appellee's petition that a liability at the institution of the suit did exist against the Texas & Pacific, and entirely consistent with appellee's good faith in making the averment. In the case of Texas & Pacific Railway Company v. Stell, 61 S. W. 980, this court held that, where a petition against two railway companies alleged a partnership or joint liability, the plea of a nonresident defendant to the jurisdiction was properly overruled where it failed to charge fraud in the allegations of partnership and joint liability; citing a number of cases. If it be necessary, in order to exclude jurisdiction, that...