Houston & T. C. R. Co. v. Fife

• Decision Date: 11 April 1912
• Citation: 147 S.W. 1181
• Parties: HOUSTON & T. C. R. CO. et al. v. FIFE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

147 S.W. 1181

HOUSTON & T. C. R. CO. et al. v. FIFE.^†

Court of Civil Appeals of Texas. Galveston.

April 11, 1912.

Rehearing Denied May 2, 1912.

Error from District Court, Harris County; Charles E. Ashe, Judge.

Separate actions by George W. Fife and his wife against Morgan's Louisiana & Texas Railroad & Steamship Company and others. There was judgment for plaintiff in each case against the named defendant, and it brings error. Affirmed.

Baker, Botts, Parker & Garwood and A. L. Jackson, all of Houston, for plaintiff in error. John Lovejoy and J. W. Parker, both of Houston, for defendants in error.

McMEANS, J.

The defendant in error, as plaintiff below, instituted two suits in the district court of Harris county, Tex., against Morgan's Louisiana & Texas Railroad & Steamship Company and its codefendants, the Texas & New Orleans Railroad Company, the Houston & Texas Central Railroad Company, and the Southern Pacific Company; one of said suits being for damages for personal injuries sustained by George W. Fife himself, and the other for damages for personal injuries sustained by his wife, Mary Etta Fife. The plaintiff's petition in each case alleged substantially that he and his wife resided in Limestone county, Tex., and that on the 23d day of December, 1905, the defendant Houston & Texas Central Railroad Company, acting for itself and as agent for its codefendants and as a member of an alleged copartnership, composed of the defendants, as common carriers, sold and delivered to the plaintiff and his wife certain tickets good for round-trip passage between Groesbeck, Limestone county, Tex., and Phœbe, Miss., passing over the connecting lines of the defendants between the said points; that while plaintiff and his wife were returning and were passengers by virtue of the return coupons or portions of their ticket, and on January 5, 1906, were traveling as passengers on the railroad of the plaintiff in error Morgan's Louisiana & Texas Railroad & Steamship Company, and at or near a station thereon by the name of Shriever, in the state of Louisiana, the passenger train on which they were riding "came into violent collision with a freight train," and thereby threw the plaintiff and wife with great force and violence against the seats of the car, causing them serious and permanent injuries in the several particulars described in the two petitions, respectively. These original petitions of plaintiff, constituting his pleadings on which the trial was finally had, were filed August 22, 1906, in the district court of Harris county, Tex., and in due time the plaintiff in error Morgan's Louisiana & Texas Railroad & Steamship Company, a corporation created and domiciled in the state of Louisiana, and a nonresident of the state of Texas, appearing for such purpose, filed its petition and bond for removal of said cause to the United States Circuit Court of the Southern District of Texas, sitting at Houston, and, in response thereto, the judge of the district court of Harris county ordered said causes removed to the United States Circuit Court, and the causes so removed into the United States Circuit Court were continued from time to time therein without any further proceedings aside from the filing of answers therein by the several codefendants (except Morgan's Louisiana & Texas Railroad & Steamship Company, plaintiff in error) until the judge of the United States Circuit Court, on his own motion, remanded the causes to the state court from which they had been removed, and the records with such orders of remand were accordingly filed in the district court April 19, 1910.

The plaintiff in error Morgan's Louisiana & Texas Railroad & Steamship Company, as one of the defendants below, after the causes had been remanded to the state district court, and the records, with orders remanding said causes, had been filed in the state court, for the first time filed its pleadings in the form of original answers thereon, and presenting in their due order of pleading the following matters, to wit: A plea to the jurisdiction of the state court of Texas and of privilege and right on its part to be sued, if at all, in the state of Louisiana and the courts of said state located and conducted at the place of its domicile in the city of New Orleans, or in the parish of Terre Bonne, in which the alleged injury occurred, and alleging in this connection that it (said defendant) was incorporated by a legislative act of the state of Louisiana containing a provision fixing its domicile in the city of New Orleans, and providing that it should be sued only at the place of its domicile, except in cases of trespass, in which event it might be sued in the parish in which such trespass occurred, and that a denial of such right and privilege vested in said defendant under the incorporating act would constitute a failure and refusal of the Texas court to give full faith and credit to public acts of the state of Louisiana, a general demurrer, a general denial, and a special plea, alleging that the injuries complained of occurred entirely in the state of Louisiana and beyond the limits of the state of Texas, and that the right of action, if any, and defenses thereto, existed and were controlled entirely by the laws of the state of Louisiana, and not by the laws of Texas; that no right of action existed under the jurisprudence of the state of Louisiana, either by the common law or upon the principles of the universal law, or otherwise, unless or except by statutory enactment in that state, and that, according to the jurisprudence of the state of Louisiana, such right of action, if any, in that state, would be and was barred by the statutes of prescription of Louisiana of the period of one year from the date of the accident and accrual of the action, January 5, 1906, and that, no right of action having been declared upon or asserted by plaintiff under such Louisiana statute up to the time of filing said answer (April 19, 1910), the plaintiff's right of action, if any he ever had, under and by virtue of the said statute and laws of the state of Louisiana, had become prescribed and barred by the statute of prescription of the said state of Louisiana of one year, and by the statute of limitation of two years of the state of Texas. The codefendants of plaintiff in error filed answers in the federal court, and, after the case had been remanded to the state court, filed amended answers, setting up defenses which need not be stated.

The causes having been remanded to the state court and the records and orders remanding same refiled therein, and the said answers filed, embracing the pleas to the jurisdiction above mentioned the causes were continued thereafter in the state court from term to term without prejudice to the said pleas until the 25th day of February, 1911, during a regular term of said district court, and on which date, in open court, the said pleas to the jurisdiction and of privilege theretofore filed in each of the cases were duly read and presented, and supported by evidence and argument to the court, and upon such hearing were overruled, to which ruling the plaintiff in error duly excepted and reserved its bills of exception. Thereafter, on motion of the defendant in error (as plaintiff below) and over the objection of defendants, the two causes as pending in the district court were consolidated and ordered to be further prosecuted and disposed of as one cause and upon a common record. The causes thus consolidated were tried before a jury and resulted in a verdict and judgment for defendant in error against plaintiff in error Morgan's Louisiana & Texas Railroad & Steamship Company for the aggregate sum of $7,500, of which $6,000 thereof was awarded for the damages sustained by the plaintiff himself and $1,500 for damages sustained by his wife, and on an instructed verdict judgment was rendered in favor of all the other defendants. From the judgment against it. Morgan's Louisiana & Texas Railroad & Steamship Company has prosecuted an appeal by writ of error to this court.

The first assignment of error presented for our consideration is as follows: "That the court erred in and by virtue of its orders and action overruling and refusing to sustain the pleas to the jurisdiction and venue, and in abatement of the action, and in retaining and exercising jurisdiction in each of said causes, notwithstanding the provisions of section 12 of Act 37 of the Legislative Assembly of Louisiana, approved March, 1877, requiring that actions such as that involved herein against Morgan's Louisiana & Texas Railroad & Steamship Company should be instituted and prosecuted and maintained only at the domicile of said corporation, to wit, New Orleans, La., or in that parish in the state of Louisiana within which the acts complained of occurred, and vesting in the said company the right of immunity from having to answer or defend elsewhere than in the state of Louisiana against any action based on the laws of Louisiana, and involving occurrences entirely within the state of Louisiana, which provision, according to its legal effect and meaning, was fully set up and proven through and under said pleas in both of said causes, and in this connection the court erred also in holding that the defendant Morgan's Louisiana & Texas Railroad & Steamship Company had waived and lost its right to plead and avail itself of such privilege and immunity vested in it under said legislative act of having appeared originally in the district court of Harris county, Tex., `for the purpose of removing to the United States Circuit Court,' and by such rulings and orders the court failed and refused to give full faith and credit to the public acts of the state of Louisiana, thus infringing the provisions of section 1, art. 4, of the Constitution of the United States of America, and all of said proceedings, rulings, and orders of the court herein complained of are set forth and fully shown in defenda...