Houston & Tex. Cent. R.R. Co. v. Graves & Co.

• Decision Date: 01 January 1878
• Citation: 50 Tex. 181
• Parties: THE HOUSTON AND TEXAS CENTRAL RAILROAD CO. v. A G. GRAVES & CO.
• Court: Texas Supreme Court

50 Tex. 181

THE HOUSTON AND TEXAS CENTRAL RAILROAD CO.

v.A G. GRAVES & CO.

Supreme Court of Texas.

1878.

ERROR from Collin. Tried below before the Hon. W. H. Andrews.

The facts are given in the statement made by counsel for appellant in their brief and in the opinion. This case was submitted at Austin, taken to Tyler, and decided Nov. 15, 1878.

Goode, Bower & Combs, for appellant.--This is a suit by Graves, Sherley & Co., against plaintiffs in error, begun December 18, 1873, averring a written contract between the parties, dated August 10, 1872, by the terms of which defendants undertook to deliver to plaintiffs, on their right of way in Collin and Grayson counties, 100,000 bois d'arc ties of certain dimensions, for which plaintiffs were to pay for those accepted $1.20 and $1.15 apiece, gold, depending upon lengths, one-half in cash and the balance at twelve months, with ten per cent. interest from date of inspection; modification of said contract August 30, 1872, a portion of oak and elm ties, for which plaintiffs were to pay 68 cents, gold, one-half cash and balance at twelve months, with ten per cent. interest from date of inspection; defendants' compliance; the appropriation by plaintiffs of many rejected ties; a verbal contract for 12 cents extra of the 68 cents on each pin-oak tie delivered south of McKinney; an inspection of the uninspected ties February 10, 1873, which had been placed on plaintiffs' road-bed, on which the engineer reserved fifteen per cent., or $942.92, one-half of which was due on inspection, the other at twelve months, with ten per cent. interest from that date, in gold; plaintiffs' failure to pay the money or give note for sum reserved; a delivery of 6,000 pin-oak ties, of the value of $720, gold, &c.; plaintiffs' refusal to pay or give note for same; an agreement by the engineer to have an inspection of other ties July 28, 1873, to be paid for at contract prices, in currency, at six months from August 1, 1873, amounting to $6,769.64; the taking of other uninspected ties of defendants of the value of $2,320; the appropriation by plaintiffs of rejected ties valued at $6,890.40; the use by employés of a number of ties in repairs of road April 15, 1873; and lay their damages at $17,804.46, gold and currency.

By amendment filed March 15, 1874, they aver that 9,500 of the oak and elm ties and 3,500 bois d'arc ties so delivered in Collin county were rejected, and, with force and arms, appropriated by plaintiffs' agents and employés, the former worth 75 cents and the latter $1.25 apiece; that the moneys claimed in this and the original petition were due and payable in Collin county; the use by plaintiffs of other ties, amounting to $2,000, since this suit, taken before commencement of suit, of which they had notice at the time, and lay damages at $25,000.

A second amended petition was filed April 1, 1874, which fixes the number of uninspected ties at 1,700 oak and elm and 800 bois d'arc, the rejected at 9,000 oak and elm and 3,500 bois d'arc, appropriated by plaintiffs.

Defendants claim for twelve cents extra on pin-oak ties under verbal contract of October 15, 1872; the fifteen per cent. reserved on estimate of February 10, 1873; the inspected ties and the rejected ties alleged to have been used by plaintiffs.

Defendants interposed a plea in abatement to the jurisdiction of the court, and specially excepted because of multifariousness and want of jurisdiction apparent on the face of the pleadings, special plea, and general denial.

A demurrer to the plea in abatement was sustained and defendants' special exceptions overruled. These and other rulings are assigned for error.

The assignments present for the decision of this court two points: 1. The jurisdiction of the court below; 2. Multifariousness in defendants' pleadings.

1. As this suit was commenced before the acts of March 21 and April 17, 1874, (Laws 2d Sess., 14th Leg., pp. 31, 32, 107, 108,) they can have no bearing upon the point.

So far as the jurisdiction of the court over the alleged trespasses is concerned, we refer to the able brief of Goldthwaite & Turner upon that subject.

But, admitting jurisdiction for this purpose, it is insisted that it did not and could not attach jurisdiction over matters of contract having no relation to or connection with the alleged trespasses. For this we must look to the statute.

The language of Paschal's Digest, art. 1423, is: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicil,” &c. Corporations are persons under statutes relating to such. (Mott v. Hicks, 1 Cow., 513; State of Indiana v. Woram, 6 Hill, 33; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, (Penn.,) 9; State v. Nashville University, 4 Humph., 157; People v. May, 27 Barb., (N. Y.,) 238; Bank of Ithaca v. King, 12 Wend., 390; Schuyler Co. v. Mercer Co., 4 Gilm., 20; McIntire v. Preston, 5 Gilm., 49; Attorney-General v. Newcastle, 5 Beav., 307; 12 C. & F., 502; Boyd v. Croydon Railway Co., 4 Bing., (N. C.,) 669; Cortis v. Kent Water Works, 7 Barn. & C., 314; Penal Code, Paschal's Dig., 1625; Lafarge v. Exchange Co., 22 N. Y., 352;Wright v. New York Railway Co., 28 Barb., 80;Field v. New York Central Railway Co., 29 Barb., 176;Johnson v. McIntosh, 31 Barb., 267;9 Abb. Pr., 40;Olcott v. Tioga Railroad Co., 20 N. Y., 210; The People v. Utica Insurance Co., 15 Johns., (N. Y.,) 358; Society, &c., v. Town of New Haven, 8 Wheat., 464;United States v. Amedy, 11 Wheat., 392;Thornton v. Bank of Washington, 3 Pet., 36-42; Commercial Bank v. Nolan, 7 How., (Miss.,) 508; Grand Gulf Bank v. Archer, 8 S. & M., (Miss.,) 151.)

They are residents. (Louisville Railroad Co. v. Letson, 2 How., (U. S.,) 497; Hubbard v. Insurance Co., 11 How., (N. Y.,) 149; Vallette v. Whitewater Canal Co., 4 McLean, (U. S.,) 192; New York and Erie Railroad Co. v. Shepard, 5 McLean, (U. S.,) 455; Cape Sable Company's case, 3 Bland, 606; Central Bank of Georgia v. Gibson, 11 Ga., 453; Hing v. Gardner, Cow., 70; Louisville Railroad Co. v. Letson, 2 How., (U. S.,) 557-559.)

They are residents of the place where their principal office is situated, &c. (Ang. on Corp., sec. 102; Thorn v. Central Railroad Co., 2 Dutch., (N. J.,) 121; Conroe v. National Insurance Co., 10 How., (N. Y.,) 403; Adams v. Great Western Railroad Co., 6 Hurlst & N., 404; 30 Law J., (N. S.,) Exch., 124; 3 Law Times, (N. S.,) 631; Bristol v. Chicago Railroad Co., 15 Ill., 436.)

That there may be some apparent conflict in the decisions of the courts, we will not deny. But some of them are founded upon the statutes of particular States, and we respectfully submit that the weight of authority is against such jurisdiction.

In addition to the above, it is required, by article 4888 of Paschal's Digest, that railway corporations shall “establish” their “office at some point on the line of their road,” &c. Notwithstanding it further provides for service of process there, the object was also to fix its residence or domicil, in order to know where it should be sued and to avoid service by attachment, which otherwise would have required suits where its property was situate.

Neither the contract, modification, nor proof shows an agreement to pay in Collin.

2. Multifariousness in the pleadings. These embrace trespasses and breach of contract, remedies ex delicto and ex contractu. (Clegg v. Varnell, 18 Tex., 300-306, and authorities cited.)

Goldthwaite & Turner, also for appellant.--The defendant pleads to the jurisdiction of this court. It is a railway corporation, chartered by the Legislature of the State of Texas. In accordance with an “An act to regulate railroads,”--“Sec. 4. Such corporation shall, as soon as convenient after its organization, establish a principal office at some point on the line of its road, and change the same at pleasure, giving public notice of such establishment and change; and all process against such company shall be served on the president or secretary, or by leaving a copy at the principal office of the corporation,” (Paschal's Dig., art. 4888,)--the defendant established its principal office in the city of Houston, county of Harris, and State of Texas, and gave public notice thereof, and has there had its principal office since the date of its organization.

“The place of business of a corporation has, for many purposes, the same legal incidents as the residence of a natural person. It gives to the courts jurisdiction over the company, and determines the legality of service of process and the sufficiency of notice. In this country the place of business of a corporation is considered its residence, and brings such a company within the operation of statutes relating to the residence of natural persons.” (1 Am. R. R. Cas., p. 143, where all the authorities are cited.)

The Supreme Court of Texas declares: “A railroad company is an artificial person, and for many purposes is regarded in the law as subject to the same responsibilities and liabilities as a natural person.” (Bartee v. Houston and Texas Central Railway Co., 36 Tex., 648.)

“The corporation being created in this State and carrying on its business in this State, must be treated, when it becomes a litigating party, as a resident of this State.” (Sherman v. B. B. B. and C. R. Co., 21 Tex., 357.) And in this case it was held that the statute of limitations, using the term ““persons,” applied with equal force to corporations.

“The place of residence of a corporation is deemed to be the place where its principal office is located or where its principal operations are carried on.” (Abbot's Dig. of Corp., title RESIDENCE, and numerous authorities there cited.)

“An inhabitant and resident mean the same thing, and the word ‘domicil’ is evidently used in the statute in the sense of residence.” (Brown v. Boulden, 18 Tex., 433.)

The venue in all actions in this State is fixed by statute.

“No person who is an inhabitant of this State shall be sued out of the county where ...