Kirby Lumber Co.'s Receivers v. McLendon
| Citation | 120 S.W. 227 |
| Parties | KIRBY LUMBER CO.'S RECEIVERS v. McLENDON. |
| Decision Date | 02 June 1909 |
| Court | Texas Court of Appeals |
Appeal from District Court, Jasper County; W. B. Powell, Judge.
Action by Emma McLendon against the receivers of the Kirby Lumber Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Baker, Botts, Parker & Garwood and Andrews, Ball & Streetman, for appellants. Greer & Minor, for appellee.
Appellee sued appellants to recover damages accruing by the death of her minor son, John McLendon, who was killed while in the employment of appellants as a water carrier. The appellants filed a plea of privilege to be sued in Harris county, alleging that the Kirby Lumber Company was a private corporation, incorporated under the laws of Texas, with its principal office in Houston, Harris county, Tex. It was alleged that appellants had been appointed receivers of the corporation by the Circuit Court of the United States of the Southern District of Texas, and the plea proceeded thus: "That the Kirby Lumber Company, as aforesaid, is a private corporation under the laws of Texas, chartered for the purpose of establishing and maintaining a lumber company, with the right and power, among other things, to purchase, lease, rent, and operate all necessary sawmills, planing mills, dry kilns, tramroads, and other necessary incidents to such business; that said Kirby Lumber Company is not a railroad corporation, nor was it chartered for the purpose of constructing or operating a railroad; that, incident to said lumber business, the said Kirby Lumber Company constructed and operated certain tramroads for its own private use; that these defendants, since their appointment as receivers of said Kirby Lumber Company, have continued the operation of said tramroads for the purpose solely of carrying on the business of said Kirby Lumber Company; but that neither said Kirby Lumber Company, nor these defendants as its receivers, have at any time been engaged in operating a railroad or railway, within the meaning of the statutes of this state fixing venue in suits against railroad company or the receivers of railroads." The plea of privilege was overruled, and a trial by jury resulted in a verdict and judgment for $5,000 in favor of appellee.
It is clear that the Kirby Lumber Company is not a railroad company, but was chartered as a lumber company with the right and power to acquire and own lands by lease or purchase for the purpose of acquiring a supply of lumber and timber, to purchase, lease, erect, and operate all necessary sawmills, planing mills, dry kilns, tramroads, and all other necessary incidents to such business, and to manufacture and sell lumber, timber, and logs. Under the authority granted by the charter, the corporation was empowered to build tramways necessary for the prosecution of its business. From the evidence it appears that the lumber company, in pursuance of its charter powers, built 12...
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Mitchell v. Porter
...authorities cited, which we believe to be sound. We do not believe that the two cases cited by appellant (Kirby Lumber Co., Receivers, v. McLendon, 56 Tex. Civ. App. 279, 120 S. W. 227, and Dickson v. Scharff, 142 S. W. 980) are in conflict with the foregoing conclusions; in fact, we think ......
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Commonwealth Bonding & Casualty Ins. Co. v. Bowles
...of the statute has been adopted by the Court of Civil Appeals for the Fourth District, in the case of Kirby Lumber Co. v. McLendon, 56 Tex. Civ. App. 279, 120 S. W. 227. As this suit is to remove cloud from title to land in Lubbock county, and plaintiff alleges that he was induced to execut......
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Bowles v. Mitchell
...case at bar, cites only one decision in support of its construction of these statutes, and that is the case of Kirby Lumber Co. v. McLendon, 56 Tex. Civ. App. 279, 120 S. W. 227. We doubt if this decision sustains the Amarillo Court. We are rather confirmed in this view by the fact that the......