El Paso & S. W. Co. v. Chisholm

• Decision Date: 11 November 1915
• Docket Number: (No. 527.)
• Citation: 180 S.W. 156
• Court: Texas Court of Appeals
• Parties: EL PASO & S. W. CO. v. CHISHOLM.<SMALL><SUP>*</SUP></SMALL>

180 S.W. 156

EL PASO & S. W. CO. v. CHISHOLM.^*

(No. 527.)

Court of Civil Appeals of Texas. El Paso.

November 11, 1915.

Rehearing Denied December 2, 1915.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by William Chisholm against the El Paso & Southwestern Company. From an order dissolving an injunction restraining the prosecution of the suit, defendant appeals. Affirmed.

Chisholm filed suit against the El Paso & Southwestern Company in the district court of El Paso county, Tex., cause numbered 12540, to recover damages alleged to have been sustained through personal injuries received by him. He alleged that he was a citizen of said county, and while in the employment of the company in the operation of one of its trains engaged in interstate commerce in the state of New Mexico was injured through the negligence of said company. In this suit citation was issued and served in El Paso county upon H. J. Simmons, the general manager of the company. Thereupon, the company filed in said court this suit, wherein it sought to restrain the prosecution of cause No. 12540 on the ground that the service of citation therein was not such as would give the court jurisdiction of the suit.

Appellant alleges that it is a railroad corporation, incorporated under the laws of the state of New Jersey, and operates a railroad in both interstate and intrastate commerce, which lies wholly in the state of New Mexico, connecting at the boundary line between the state of Texas and the state of New Mexico, with a line of railroad operated and owned by the El Paso & Northeastern Railroad Company, a corporation incorporated under the laws of Texas, and which runs from said point of connection to the city of El Paso, in El Paso county, Tex., and over which freight, passengers, mail, and express originating upon appellant's line of railroad pass to and from El Paso in interstate commerce and appellant participates in such interstate commerce with the El Paso & Northeastern Railroad Company by means of a division of revenue, but does not transport or handle in the state of Texas any commerce; that appellant is required under the laws of New Mexico to have and maintain, and does have and maintain, therein its principal office and place of business and an agent thereat, upon whom service of process might be had, the place of such office and principal place of business and the name of the agent thereof being stated in the petition; that appellant maintains and operates its trains and its railroad in the state of New Mexico by and through a superintendent and trainmaster therein, which superintendent resides and has his office and transacts all of his business pertaining thereto at and from the town of Tucumcari, in New Mexico, and the trainmaster resides and has his office and transacts all of his business in the town of Carrizozo, in New Mexico, and all trains and employés of appellant engaged in the operation of its trains and railroad are at all times while in such state under the direction and control of said officials; that appellant has never in any way constituted or appointed the said Simmons as its agent upon whom legal process might be served, and at the time of the service of citation in case No. 12540 he was not the agent of appellant for such purpose, except to the extent that he was legally made such under and by virtue of the statutes of the state of Texas.

Appellant averred further that, under the Constitution and laws of the United States, Chisholm was without right to sue it upon his alleged cause of action, arising, as it is claimed, in the state of New Mexico, by virtue of the service of process upon said general manager, and it was claimed that said suit could only legally be brought and maintained with service had in New Mexico, and that the bringing and maintaining of the suit in a Texas court and requiring appellant to answer therein under such service so made upon its general manager was not due process of law, and was contrary to the Fourteenth Amendment to the federal Constitution, and any judgment therein rendered against it would be to deprive appellant of its property without due process of law. Other allegations made are not considered pertinent to the consideration and dispositions of the questions presented, and will not be stated. The averments of fact contained in the allegations stated will be assumed as true for the purpose of this appeal.

The following facts are also established by the undisputed testimony of appellant's officers, viz.: Mr. Hawks testified that during the time Simmons was general manager he was a resident of El Paso, Tex., and had his general office in said city; that he was general manager of the company for a number of years, and during all this time he executed all functions as general manager, performing those duties in El Paso; that he (Hawks) was general superintendent of the company in the month of August, 1915, and performed the duties of general superintendent in El Paso; the company had no general superintendent of its lines in New Mexico; he had supervision over the men and their work; during the time he was general superintendent he had supervision over all the employés running and operating the road in New Mexico; he had acted as general superintendent from April, 1907, up until September 1, 1915, when he succeeded Mr. Simmons, during all of which time he maintained his office in El Paso and performed his duties as superintendent therein and on the line. El Paso was the only place at which he maintained an office. The superintendent and trainmaster in New Mexico were under his supervision and instruction. Mr. Simmons, as the ranking officer, would issue instructions, which would come to the witness, who would then issue instructions to the trainmasters, superintendents, and others. Instructions were also issued as to men in Arizona, Texas, and New Mexico. Superintendents reported to him. He and Mr. Simmons had the right to discharge the New Mexico superintendent or any other employé of the company in New Mexico, and exercised the right in many instances from his office in El Paso. The general passenger agent of appellant maintains offices in El Paso, as does the general claim agent also. The treasurer maintains an office there and performs his duties there. The general superintendent of motive power of appellant has an office in and resides in El Paso. A. L. Hawley testified that he was the general auditor of the El Paso Southwestern System and that there were about nine roads embraced in that system. There were four operating roads — the appellant and three others. Appellant had no other auditor than himself, and its accounts were kept in his office. He performed all the duties of general auditor of appellant in El Paso. It was agreed by counsel that 90 per cent. of the business of the El Paso Northeastern Railway Company and of the appellant is interstate business.

Mr. Simmons' connection with the company ceased September 1, 1915, when he was succeeded by Mr. Hawks. Chisholm's suit was filed July 12, 1915, and citation thereon was issued and served upon Simmons while he was general manager of the company.

In the court below a temporary injunction was issued, which was thereafter dissolved, and from the order of dissolution, this appeal is prosecuted.

Hawkins & Franklin...