Sorkin v. Houston, E. & W. T. Ry. Co.

• Decision Date: 28 October 1899
• Citation: 53 S.W. 608
• Parties: SORKIN v. HOUSTON, E. & W. T. RY. CO.
• Court: Texas Court of Appeals

53 S.W. 608

SORKIN v. HOUSTON, E. & W. T. RY. CO.

Court of Civil Appeals of Texas.

October 28, 1899.

Appeal from district court, Shelby county; Tom C. Davis, Judge.

Action by A. J. Sorkin against the Houston, East & West Texas Railway Company. From a judgment dismissing the action, plaintiff appeals. Reversed.

Branch, Garrison & Blount, for appellant. Baker, Botts, Baker & Lovett and J. C. Feagin, for appellee.

GILL, J.

This was an action for damages for the loss of personal property, alleged to have been the consequence of the negligence of appellee in permitting sparks to escape from its locomotive engine, resulting in the destruction of the property by fire. The suit was brought in the district court of Shelby county, Tex., naming appellee alone as defendant. It was alleged in the petition that appellant was and is a citizen of the state of Louisiana, and at the date of the injury complained of was the owner of the personal property alleged to have been so lost by fire, and that it was situated at the time in the town of Logansport, in the state of Louisiana. Such other allegations as are necessary to be here stated are substantially as follows: Appellant alleged that the Houston, East & West Texas Railway Company was a Texas railway corporation, with domicile and general offices in Houston, Harris county, Tex.; that it owned and operated a line of railroad extending from the city of Houston to the Texas state line, at Logansport La., its road being situated entirely in Texas; that the railroad from Logansport to Shreveport, in Louisiana, was the property of the Houston & Shreveport Railway Company, a Louisiana railway corporation; that, at the date of the injury complained of, the appellee and the Louisiana corporation were partners in the operation of the said two lines of railway, their operation being under the management of the Texas corporation; that the Louisiana corporation owned no rolling stock, but the Texas corporation owned all the rolling stock thus used, the employés and agents being selected, employed, controlled, and paid by the Texas corporation at Houston, and the trains being run from Houston in Texas to Shreveport, in Louisiana, by the operatives thus selected, without change of crews; that the Louisiana corporation furnished only the railway line from Logansport to Shreveport. The appellant further alleged that, if he is mistaken in the averment that the two companies were partners, then he avers that the Texas company is operating the Louisiana road under a lease, using its own rolling stock, and exercising exclusive control, as alleged in the first instance. It is then alleged that, if appellant is mistaken in both these respects, he avers the fact to be that while one is a Texas corporation, and the other a Louisiana corporation, having separate boards of directors, in fact the two boards are composed of the same persons; that there is in fact but one general office and one management for both corporations, and that is, as first alleged, in the city of Houston, Tex.; that both the roads sell through tickets over the entire combined line, allowing no stop-over at the actual terminal of each at Logansport. The petition contained an averment that the line of the Texas corporation ran to and through the county of Shelby, Tex., and that appellee had an agent in said county. Service was in fact had upon such agent.

When the case was called for trial, the appellee interposed a plea of privilege, setting up the fact that the petition showed on its face that the appellant and appellee each resided in Louisiana; that the acts and omissions complained of were committed in the state of Louisiana, on the line of defendant's railway, and that no part of the cause of action arose in Texas; that appellant had an adequate remedy in Louisiana; and that therefore the court was without jurisdiction to try the cause. This plea was presented and urged before the trial court on January 9, 1899, and, it having been sustained, the cause was dismissed. This appeal was perfected, and the court's action is, under an appropriate assignment of error, properly before us for review. That the petition stated a cause of action, and that the trial court had the power to hear and determine the cause upon its merits, are not questioned; so the only issue between the appellant and appellee, as regards this appeal, is whether this court should review and revise the discretion exercised by the trial court in refusing to adjudicate the cause in this state. After a full consideration of the carefully prepared briefs of both parties, this court is constrained to hold that the court below should have entertained jurisdiction of the cause. While it may be true, as contended by appellee, that in only one instance have the appellate courts revised the action of the trial court in the exercise of discretion in hearing or dismissing suits brought in the courts of this state by nonresidents upon causes of action arising wholly without this state, it is equally true, as far as we have been able to find, that in no instance has the court declined to entertain jurisdiction where the defendant was in fact a resident of this state, and plaintiff's cause of action was transitory in its...