East Line & R. R. Ry. Co. v. Rushing

• Decision Date: 09 December 1887
• Citation: 6 S.W. 834
• Parties: EAST LINE & R. R. RY. CO. v. RUSHING.
• Court: Texas Supreme Court

6 S.W. 834

EAST LINE & R. R. RY. CO. v. RUSHING.

Supreme Court of Texas.

December 9, 1887.

Appeal from district court, Hopkins county; J. A. B. PUTNAM.

Action for damages for personal injuries, brought by J. S. Rushing against the East Line & Red River Railway Company. From a judgment for plaintiff defendant appeals.

Whitaker & Bonner, for appellant. E. W. Terhune and R. L. Porter, for appellee.

WILLIE, C. J.

This was a suit by Rushing against the appellant, in which damages were claimed for injuries received by the plaintiff while a passenger on the defendant's train. The defendant pleaded a general denial of the allegations of the petition; that the plaintiff's negligence contributed towards producing the injuries; and, further, that it had sold and transferred its railroad and equipments to the Missouri, Kansas & Texas Railway Company, by due authority of law, in 1881; and that at the time plaintiff was injured it was not operating the road, nor was it in any way responsible for its control and management. To this last plea a demurrer was sustained by the court below, and that part of the answer was stricken out. The trial of the cause before a jury resulted in a verdict for the plaintiff for $5,000, and from the judgment rendered thereon this appeal is taken.

The first error assigned is to the ruling of the court sustaining the plaintiff's exception to the defendant's special answer setting up the sale and transfer of its road to the Missouri, Kansas & Texas Railway Company. The answer alleges that the sale was made by virtue of certain acts of the legislature, which are not set out in full, but are pleaded by their title and date of approval; and the further averment is made that these acts authorized the sale and transfer to be made. Our statute provides that, when any pleading is founded wholly or in part upon any private act, it shall not be necessary to set it out, but it shall be sufficient to recite the title thereof, and the date of its approval, and allege in substance so much of said act as may be pertinent to the cause of action or defense. Rev. St. art. 1191. Admitting that an allegation that an act authorized a railroad company to sell and transfer its road is an averment of the substance of that part of the law which gives the authority, we think that such an allegation places before the court the entire act so far as it relates to the authority claimed, and the court may examine it to see whether its provisions in this respect are properly stated. The object of the statute is to relieve the pleader of the necessity of setting forth the act in any of its provisions in full, and to give him, his adversary, and the court the same benefit of these provisions as if they formed a part of his pleading. Hence, upon a demurrer to the answer, the court may look at the act, and see if the substance of the provision relied on is properly alleged. The defendant asserted that certain acts of the legislature authorized it to sell its road and equipments to the Missouri, Kansas & Texas Railway Company. The particular sections of the acts in which the authority was to be found were not pointed out, but the entire acts were submitted to the inspection of the court, and it was alleged that they contained the grant of power relied on. Statutes of which judicial notice could not otherwise have been taken were thus brought to the actual knowledge of the court, and they could be taken into consideration in passing upon the question as to whether the answer had properly construed them.

The fifth section of the act of 1871 pleaded by the appellant provides in its last clause as follows: "Said company is authorized, and the right is hereby granted them, to cross or connect with any other railway, to join stocks or consolidate with any other railway company running in the same general direction." The fourth section of the amendatory act of 1873 contains this provision: "That said company shall not have the right to rent, sell, lease, or consolidate with any parallel or competing railroad in the state." The fourth section of the act of August 2, 1870, in relation to the Missouri, Kansas & Texas Railway Company, reads as follows: "That the said company shall have the right to purchase, sell, lease, join stocks, unite, or consolidate with any connecting railroad company, by and with the approval and consent of a majority in interest of the stockholders in each company, and to acquire and merge into itself all or any part of the property, rights, and privileges, and franchises of such other company, upon such terms and conditions as may be agreed upon by their respective boards of directors." All of these acts were pleaded by the company; and if it was empowered to sell, and the Missouri, Kansas & Texas Railway Company to buy, its road, and operate the same, so as to release the appellant from responsibility for the wrongs complained of in this action, the power must be found in the sections we have recited. The power granted the Missouri, Kansas & Texas Company to purchase is restricted in one respect only, — the property, franchises, etc., purchased must belong to some company whose line connects with its own. But in the case of the East Line & Red River Company further restrictions are imposed as to sale and consolidation. This company must not consolidate with or sell to any other company except such as has a line of road running in the same general direction, nor to a parallel or competing railroad. In order to render a contract of sale effective, there must be both a power to sell in the vendor, and a power to purchase in the vendee. If, therefore, the lines of these two roads did not connect, the sale was unauthorized, because the purchasing company had no right to buy; and if they were parallel or competing lines, it was unauthorized because the appellant company had no right to sell. It may be that this court, judicially knowing the geography of the state, might take notice from the general direction of these two roads, as fixed by the statutes under consideration, that their lines must necessarily cross each other, and could therefore treat them as connecting lines, and not parallel to each other. But as to whether they were competing lines we could have no judicial knowledge whatever. Competition between railroads may exist, and yet their lines not run parallel, but cross each other at some point in their route. Hence, when a question as to such competition is raised, the court or jury must have proof upon the subject, as in case of any other fact submitted for its consideration.

The appellant claimed a right to which it was not entitled by the general law of the state. It claimed a privilege not accorded to railroad companies generally, either by common law or statute. It claimed this under a private act passed for its special benefit. It was its duty, therefore, to bring itself clearly within the purview of the act; to show that the circumstances, under which the right to sell its franchise and property could be claimed, actually existed at the time of the sale; that the road to which it was sold was a connecting, but not a parallel or competing, line. There was no allegation in the answer that the Missouri, Kansas & Texas Railway was not a competing line, and, as the court could not judicially know that such was the case, the answer was fatally defective. It did not make out a state of case in which the defendant company could sell out to another. Without due statutory authority, a railroad company cannot transfer the right to operate its road so as to absolve itself from its duties...