Southern Pac. Co. v. Allen

• Decision Date: 04 December 1907
• Parties: SOUTHERN PAC. CO. v. ALLEN.
• Court: Texas Court of Appeals

106 S.W. 441

SOUTHERN PAC. CO. v. ALLEN.

Court of Civil Appeals of Texas.

December 4, 1907.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by P. G. Allen against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Beall & Kemp, for appellant. Patterson & Wallace, for appellee.

NEILL, J.

We adopt the appellant's statement of the nature and result of the suit, which is as follows: "This is a suit for personal injuries—loss of left arm—brought in the district court of El Paso county by plaintiff, a resident citizen of Arizona, against the defendant, a foreign corporation. Plaintiff alleges, in substance, that on August 15, 1905, he was employed by defendant, an interstate carrier, as a switchman at Yuma, Ariz., and that it became necessary for him to uncouple two freight cars equipped with automatic couplers, and that he took hold of the lift lever in the usual manner in order to raise the lock pin, but that the chain attached to the pin was too long, and kinked in the drawhead and prevented the appliances from uncoupling, and that in order to uncouple the cars it became necessary for him to enter between the cars and raise the lift lock, or release the lift chain, by taking hold of the lift lock or lift chain with his hand, and that while he was doing this with his arm between the buffers the two cars came together, and caught and mangled his arm, so that it was necessary to amputate the same near the shoulder. The plaintiff also alleged liability on the defendant's part under what is known as the "Safety Appliance Act" of Congress. The defendant filed a plea of privilege, claiming its right to be sued, if at all, in Harris county, Tex., which being overruled, it filed a special exception raising the question of the court's jurisdiction; and, this demurrer being overruled, it filed a general demurrer, general denial, and plea of not guilty, and certain special pleas, among which were those of assumed risk, contributory negligence, violation of the defendant's rules, negligence of fellow servants and the laws and statutes of Arizona relating to fellow servants. The court overruled the defendant's plea of privilege and special demurrer. On the 22d day of November, 1906, a verdict was rendered in favor of plaintiff for $12,500. The defendant's motion for a new trial was overruled, but the court required a remittitur of $2,500 which was entered. Defendant gave notice of appeal, and in due time filed supersedeas, appeal bond, and assignment of errors, and comes to this court on appeal." In considering the several assignments of error we shall state our conclusions of fact as well as of law. They are as follows:

1. The court did not err in admitting in evidence the folder referred to in the first assignment of error, upon the issue made by the defendant's plea of privilege; for, if the defendant was engaged in operating a line of railway into the county and city of El Paso, Tex., or maintained an office or local agent there, as was alleged by plaintiff, defendant's plea could not be maintained. The folder in question was issued and put in circulation by the Southern Pacific Company, and contained such statements as tended to prove such allegations of the plaintiff. Such statements, being in the nature of declarations of a party against interest, in view of the issue made by the plea of privilege, were admissible as evidence tending to show that the venue of the suit was properly laid in El Paso county, Tex. In the case of Peterson v. C., R. I. & Pac. R. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 851, a folder of the same kind was introduced and considered as evidence upon a similar question. That it was not, in connection with other evidence, deemed sufficient to prove the fact in issue, did not affect its admissibility, but only its probative force.

2. It is contended by the second assignment that the court erred in not sustaining defendant's plea to its jurisdiction. It being undisputed that the Southern Pacific Company is a foreign corporation and that plaintiff's cause of action arose in Arizona, the question was whether the company operated a railroad, did business in, or had an agent or representative in El Paso when the suit was brought and process served. This was a question of fact for the jury, or the court sitting as a jury, to determine. Audenried v. East Coast Milling Co. (C. C.) 124 Fed. 697. There being evidence tending to support the finding of the trial judge upon the issue, it is not within our province to disturb it. While the evidence introduced pro and con upon the issue is much similar to that in the case of Peterson v. C., R. I. & Pac. R. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 851, it was directed in that case to a motion made by the defendant to quash the service. In this case the question is one of jurisdiction of the state court, which depends upon the interpretation of the state statute under which it is asserted. This, it would seem from the opinion in Green v. C., B. &amp Q. R. Co., 205 U. S. 531, 27 Sup. Ct. 595, 51 L. Ed. 917, differentiates the cases. A state court must necessarily construe the law and determine the facts upon which its jurisdiction depends; and if, in the exercise of this duty, its action is questioned by a federal court, it may, unless it involves a principle controlled by the Constitution of the United States, reply in the language of St. Paul: "Who art thou that judgest another man's servant? To his own master he standeth or falleth." The case in hand cannot, as to the question under consideration, be distinguished in any manner from that of Southern Pacific Company v. Cranmer, 101 S. W. 534, and we can perceive no reason why we should not adhere to our opinion in that case.

3. It is claimed under the third assignment that this is a local, as distinguished from a transitory, action, and that the court had not, or should not entertain, jurisdiction. "If an injury be done to the person or to personalty of another, it is at common law said to be `transitory'; that is, the liability therefor is deemed to be personal to the perpetrator of the wrong, following him wherever he may go, so that compensation may be exacted from him in any proper tribunal which may obtain jurisdiction of the defendant's person, the right to sue not being confined to the place where the cause of action arises." Minor's Conflict of Laws, § 192. The right of the courts of one state or country to take jurisdiction of this class of actions, if not contrary to the public policy of the forum, arises from the comity due one state or country to another, and is established beyond dispute. The concurrence of the lex fori and lex loci delictus in holding the act complained of to be the subject of legal redress conclusively shows that it is not against the public policy of the state where the action is brought to entertain jurisdiction. This concurrence, however, may not be an absolute condition of the jurisdiction; for it does not follow from the lack of such concurrence that the policy of the forum is necessarily hostile to entertaining an action for tort based upon acts occurring in another jurisdiction. Though the lex fori and lex loci delictus may in some features be different, yet if both give the right of action for the wrong complained of, and the redress given the injured party by the lex loci delictus is such as obtains and may be enforced in the lex fori, the difference in other features of the law of the respective jurisdictions will not constitute an insuperable barrier to the jurisdiction of the forum. The law of Texas and the law of Arizona concur in holding that a negligent act, such as that upon which this suit is based, is subject to legal redress; for, if the action should be regarded as distinctively statutory, the statute upon which it is based gives the same right of action and redress for injuries caused from its violation in every state and territory in the American Union. The nonresidence of the parties does not, in the absence of a statute of the forum to that effect, deprive the court of jurisdiction of a tort occurring outside of its state. As is said by the Supreme Court of Pennsylvania in Knight v. Railroad Co., 108 Pa. 250, 56 Am. Rep. 200: "We think the weight of recent and better-considered adjudications in this country decidedly favors the application of the same rule to all transitory actions for injuries to persons or property, whether recognized by the common law or created by statute to meet new exigencies of modern life, unless such statute is contrary to the policy of the laws of the state where the action is brought. The claim of comity on which the rule is founded is as urgent in the one case as the other. * * * As a general rule, neither citizenship nor residence is requisite to entitle a person to bring suit in Pennsylvania. A court having jurisdiction of the subject may acquire jurisdiction of the person by lawful service of its process. If a defendant were not liable to answer in a civil action in any state where he may be found, he could easily evade service of process. A preliminary inquiry respecting the citizenship or residence of the parties could not advantage the public." See, also, Eingartner v. Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859; Pullman Palace Car Co. v. Lawrence, 74 Miss. 784, 22 South. 53; Railway v. Crudup, 63 Miss. 291. The reasoning of the court in the Pennsylvania case, as well as in the cases just cited, applies to the case under consideration; for in Texas, also, "as a general rule, neither citizenship nor residence is requisite to entitle a person to bring suit" in her courts.

4. The fourth assignment of error complains of the court giving plaintiff's fourth special instruction, which is as follows: "At the request of the plaintiff you are further instructed that if you should...