Missouri, K. & T. Ry. Co. v. Demere & Coggin

• Decision Date: 07 March 1912
• Citation: 145 S.W. 623
• Parties: MISSOURI, K. & T. RY. CO. et al. v. DEMERE & COGGIN.
• Court: Texas Court of Appeals

145 S.W. 623

MISSOURI, K. & T. RY. CO. et al. v. DEMERE & COGGIN.

Court of Civil Appeals of Texas. El Paso.

March 7, 1912.

On Motion for Rehearing March 27, 1912.

Appeal from Nolan County Court; John J. Ford, Judge.

Action by Demere & Coggin against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Douthit & Smith, H. C. Hughes, and Alexander S. Coke, for appellants. Ed. J. Hamner and Geo. T. Wilson, for appellees.

PETICOLAS, C. J.

This was a suit by the appellees against the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, a Kansas corporation, for damages to a shipment of 72 head of cattle between Sweetwater, Tex., and East St. Louis. The suit was brought under the Hepburn Act by appellees against the Texas & Pacific Railway Company, alleging that it had received the cattle and executed a bill of lading therefor. The Missouri, Kansas & Texas Railway Company, which will hereinafter be called the "Kansas Corporation," filed a motion to quash the citation and return, purporting to show service on said defendant. It supported this motion to quash by the affidavit of W. N. King, of Denison, Tex., who was admitted to be the local agent at that point of the Missouri, Kansas & Texas Railway Company of Texas, which will hereinafter be called the "Texas Corporation." It also introduced evidence in support of its motion to quash.

Without attempting to state all of the testimony with reference to King's position and as to whose agent he was, we find that it was shown by the testimony that the Red river is the dividing line between Texas and Oklahoma. When the Kansas corporation sends its trains south over its line of road, the same crew carry the train into Texas to Denison; there is no change of crew, engine, or train when the boundaries of Texas are reached. The same thing is true going northwardly. It is also indicated in the testimony, and admitted in the supplemental argument filed by the Kansas corporation, that W. N. King, the agent who was served, makes contracts for transportation of freight over the line of the Kansas corporation. It has been repeatedly decided in this state, under these circumstances that the foreign corporation is doing business in the state (S. P. Co. v. Craner, 101 S. W. 534; S. P. Co. v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 443; Railway v. Kiser, 136 S. W. 854); and under the act of March 13, 1905 (Acts 29th Leg. c. 25), it was provided that any agent who has an office in Texas, and who sells tickets or makes contracts for the transportation of passengers or property over any line of railroad, or part thereof, is agent of such foreign corporation or company, upon whom citation may be served. In assigning error on the overruling of the motion to quash, the appellant Kansas corporation seeks to differentiate this case from the authorities cited on two grounds: First, that it has raised the question by motion to quash; second, that it contends that to require this defendant to appear and answer without quashing the citation would be violative of section 19, art. 1, of the Constitution of the state of Texas, and the fourteenth amendment to the Constitution of the United States.

We do not see any difference in submitting the matter as a question of fact to the jury or court trying the case, or raising it by motion to quash. In either instance, it is necessary to decide whether the person served comes within the terms of our statutes regulating service upon foreign corporations. It is a pleasant fiction of the railroads operating under analogous circumstances that, although the Kansas corporation runs its trains into Texas to Denison, using the same crew and the same instrumentalities, as they cross the Red river, the crew operating said train cease to be the servants of the Kansas corporation and become servants of the Texas corporation.

In Buie v. Chicago, R. I. & P. Ry. Co., 95 Tex. 64, 65 S. W. 30, 55 L. R. A. 861, is quoted with approval the following extract from a New York case: "We have of late refused to be always and utterly trammeled by the logic derived from corporate existence, where it only serves to distort or hide the truth. This court has always refused to be controlled by technicalities, when interposed to prevent an investigation into the real facts of a case. Courts will look beneath the mask of legal forms for the real facts of any transaction presented to them for investigation." The case cited is by Chief Justice Brown of the Supreme Court, and is of particular interest in reference to appellant's contention that, as the law requires a Texas corporation in Texas, therefore the employés of the Kansas corporation, upon reaching the Red river, must perforce become the employés of the Texas company. In the same case, Judge Brown says again: "The men who constitute the crews on the freight and passenger trains which, leaving Ft. Worth, go northward are nominally in the employ of the Texas corporation until the imaginary state line has been passed, when, by some kind of mysterious change, they become employés of the foreign company; returning they undergo a similar change in reverse order"—and decided in that case that the local company's employés were the agents of the foreign company.

We do not find it necessary to go quite that far in this case; but we think the facts show that the Kansas company was doing business in Texas. It may have only been from the Red river to Denison; it may have...