Pecos & N. T. Ry. Co. v. Porter

• Citation: 156 S.W. 267
• Parties: PECOS & N. T. RY. CO. v. PORTER et al.
• Decision Date: 22 March 1913
• Court: Texas Court of Appeals

156 S.W. 267

PECOS & N. T. RY. CO. v. PORTER et al.

Court of Civil Appeals of Texas. Amarillo.

March 22, 1913.

Rehearing Denied April 26, 1913.

Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.

Action by G. H. Porter and others against the Pecos & Northern Texas Railway Company. From an adverse judgment, defendant appeals. Reversed and remanded.

See, also, 56 Tex. Civ. App. 479, 121 S. W. 897.

Madden, Trulove & Kimbrough, of Amarillo, Carl Gilliland, of Hereford, and Terry, Cavin & Mills, of Galveston, for appellant. Knight & Slaton and S. J. Dodson, all of Hereford, for appellees.

HALL, J.

On January 24, 1907, Guy H. Porter filed in the district court of Deaf Smith county this suit against the Ft. Worth & Denver City Railway Company, the St. Louis & San Francisco Railway Company, and appellant, alleging that about the 11th day of January, 1907, he delivered to the defendants at Fletcher, Okl., one car loaded with horses, hogs, farm implements, household goods, etc., to be transported to Bovina, Tex.; that the Frisco road contracted with plaintiff to carry the goods and deliver them at Bovina, for an express consideration of 37 cents per hundred pounds, the agreement being in writing and signed by both parties; that there being no scales at Fletcher, the weight of the car of goods, etc., was estimated at 20,000 pounds and the contract price or rate of freight, amounting to $74, was prepaid; that the St. Louis & San Francisco Railway transported and delivered the car to the Ft. Worth & Denver City Railway at Quanah, Tex., which company accepted and transported the same to Amarillo, Tex., under a written contract, and at Amarillo delivered the same to the Pecos & Northern Texas Railway Company, which accepted the shipment and made a contract in writing with the plaintiff to deliver the car to plaintiff at Bovina, Tex., and when the car reached Bovina it was found there was 4,000 pounds excess weight, making $14.80 additional freight chargeable under the contract rate of 37 cents, which additional amount appellee tendered and offered to pay, but that the defendant (appellant herein) refused to accept the amount and demanded freight at the rate of 67 cents per hundred, or about $90, which appellee refused to pay. The petition alleges the value of the property to be $2,500, and claims expense in the sum of $75.05, and prays for actual and exemplary damages. On February 22, 1908, without other change than adding two more names as plaintiffs to the case, a first amended original petition was filed in which G. H. Porter, B. M. Porter, and L. Cameron are named as plaintiffs. This amendment sets up the same cause of action as the original petition filed by G. H. Porter alone. On March 3, 1908, plaintiffs filed a second amended original petition against the same three defendants, slightly changing the form of the allegations in the former pleadings, but seeking recovery on account of the same car and the refusal to deliver. The Frisco Company made no appearance. The Denver Railway and appellant answered, demurring to the petition. This demurrer was sustained by the trial court, and, on writ of error to the Court of Civil Appeals for the Second District, the judgment of the trial court was reversed and the cause remanded. See Porter v. Pecos & Northern Texas Ry. Co., 56 Tex. Civ. App. 479, 121 S. W. 897. On the 28th day of October, 1911, plaintiffs' third amended original petition was filed, in which no other mention is made of the names of G. H. Porter and L. Cameron as parties to the suit, and naming the Pecos & Northern Texas Railway Company as the sole defendant. This third amended original pleading presents a cause of action by B. M. Porter as plaintiff against appellant alone. The cause of action set out therein is substantially the same as contained in the former original pleadings. Upon the filing of this pleading, appellant filed a motion to dismiss or to continue for want of service, claiming that it was entitled to service because the pleading was a new suit and that the suit as originally brought had been abandoned and abated. Its motion being overruled, appellant filed a first amended original answer, containing demurrers, general and special, plea to the jurisdiction, general denial, and special pleas. During the trial, plaintiff was permitted by the court to file a fourth amended original petition, being substantially the same cause of action before declared upon, claiming the conversion of divers and sundry articles described in the lists and exhibits attached to the petition. These lists had previously been attached to the third amended pleading. After the filing of this fourth amendment by plaintiff B. M. Porter, the defendant filed a supplemental answer, containing demurrers and also filed a motion to retax the costs. The demurrers were overruled.

The first assignment of error complains of the court's action in overruling defendant's alternative motion to dismiss or continue for service, because the suit, as originally brought, had been abandoned, and because no notice of the new suit and of the amended petition filed in vacation, had been served on defendant. We think there was no error committed by the court in overruling this motion. Dropping the name of one plaintiff from a suit, by an amendment of the petition, does not state a new cause of action nor abandon the suit as originally filed. Mo. Pac. Ry. Co. v. Watson, 72 Tex. 631, 10 S. W. 731; Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303; Pridgen v. McLean, 12 Tex. 420 Neither does adding the name of another plaintiff by an amended petition change the cause of action. Roberson v. McIlhenny, 59 Tex. 617. Elimination of a defendant improperly joined may be by amendment and does not constitute a new cause of action. Texas Midland R. R. Co. v. Cardwell, 67 S. W. 157.

There was nothing improper in the assignment by the part owners of the contents of the car to the appellee B. M. Porter, and he had the right to maintain the suit for the recovery of the entire damages in his own name in the capacity of assignee. T. & P. Ry. Co. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562, and while the assignment or cause of action during the pendency of the suit is proper, it does not necessitate a change of parties. Bailey v. Laws, 3 Tex. Civ. App. 529, 23 S. W. 20; Drouilhet v. Pinckard, 42 S. W. 135; Ostron v. Layer, 48 S. W. 1095; Seiter v. Marschall (Sup.) 147 S. W. 226.

Appellant's remaining contention under this assignment is disposed of in Western Union Telegraph Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312-314, in which Pleasants, Justice, quoting article 1188, Revised Statutes of 1895, says: "This statute confers the right to file amended pleadings in vacation in express terms, and it is not clear under any proper construction of the article that the provision as to notice applies to any pleading mentioned other than pleas in intervention. It certainly cannot be construed to mean that an amendment filed without notice should have no effect and should be treated as a nullity. Of course, the opposite party would be entitled to notice of the filing in vacation of an amendment setting up a new cause of action or injecting new issues in the case, which would operate as a surprise and present a case he was not prepared to meet, and, under such circumstances, he would be entitled to a continuance at the cost of the party filing the amendment."

The second assignment insists that its plea to the jurisdiction of the state court should have been sustained because it fully appeared from the pleadings and the testimony that the federal court alone had jurisdiction of the controversy. It appears from the record that this suit was filed about 10 days after the car of stock and household goods arrived at Bovina; that on October ____, 1907, G. H. Porter, L. Cameron, and the plaintiff, as joint complainants, filed their complaint with the Interstate Commerce Commission, and each of the railway companies hereinbefore named appeared and answered before the Commission. The Commission made an award, and on January 9, 1909, plaintiffs filed in the federal court at Amarillo a suit to enforce the award, which suit is yet pending. These facts were offered in support of the plea to the jurisdiction and in abatement; and the questions arising under this assignment were also raised by demurrers, all of which were overruled and the case proceeded to trial on the merits. Appellant insists, and it cannot be denied, that the freight in question must be classed as interstate commerce.

On the former appeal, the Second Court of Appeals held that the cause of action, as shown by the petition, was simply a suit for conversion (56 Tex. Civ. App. 479, 121 S. W. 897), and that the matter presented for adjudication was not one exclusively within the jurisdiction of the federal court or to be passed upon by the Interstate Commerce Commission. As we understand the duties, powers, and authority of the Interstate Commerce Commission, it has no right to adjudicate a question of damage for conversion, and the issue raised by this assignment has been, in our opinion, settled adversely to appellant's contention. In St. Louis, San Francisco Railway Co. v. Roff, 128 S. W. 1194, Bookout, Justice, after announcing the rule that the question of jurisdiction between the state and federal courts is one to be determined by the averments of the petition and not by the federal questions presented defensively by the answer, held that, in an action by a shipper against a railroad to recover an alleged rebate on interstate shipments, where the sole issue was as to the meaning of a tariff adopted by defendant, which interpretation is not affected by the Interstate Commerce Law, does not present a federal question, conferring jurisdiction exclusively on the federal courts, and that the state courts have jurisdiction to interpret such a tariff, though it is interstate and...