Southern Pac. Co. v. Graham

• Decision Date: 15 January 1896
• Citation: 34 S.W. 135
• Parties: SOUTHERN PAC. CO. v. GRAHAM.
• Court: Texas Court of Appeals

34 S.W. 135

SOUTHERN PAC. CO. v. GRAHAM.

Court of Civil Appeals of Texas.

January 15, 1896.

Appeal from district court, El Paso county; C. N. Buckler, Judge.

Action by John Graham against the Southern Pacific Company to recover for the destruction of property. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Davis, Beall & Kemp, for appellant. Stanton & Turney, for appellee.

FLY, J.

This suit was instituted by appellee on September 20, 1892, against a defendant described as the Southern Pacific Railway Company, for damages arising from the destruction of a certain windmill and tower and a dwelling house and its contents, situated in Dona Ana county, N. M. It was alleged that the Southern Pacific Railway Company was a foreign corporation, with an agent in El Paso, Tex., and that appellee was a resident of New Mexico. An amended petition was filed on June 22, 1895, in which the defendant was styled the Southern Pacific Company, in which, in addition to the allegations in the original petition, it was alleged that the original petition correctly described the local agents of the appellant, but by mistake it had been designated the Southern Pacific Railway Company, and that in fact the railroad was operated by appellant when the fire occurred that destroyed the property. To this petition appellant interposed pleas that the claim was in its nature local, and not transitory; that the property was destroyed in New Mexico, and the cause was not in the jurisdiction of the trial court; and that the cause of action was barred by limitation. For answer, in addition to a plea of not guilty and general denial, it was alleged that, if the property was destroyed, it was near the line of the Southern Pacific Railroad Company, in New Mexico, and denied that appellee sued appellant under a misnomer, and that the cause of action was barred by limitation. The proper construction of the appliances of the engine were also pleaded. The exceptions were overruled, and the cause, being tried by a jury, resulted in a verdict and judgment for appellee for $693.75.

Personal property of appellee of the value for which the verdict was rendered was destroyed by the negligence of appellant. The spark arresters used on the locomotive of appellant were defective, and emitted large sparks or cinders, which fell on the roof of appellee's house, and it, with its contents, was consumed.

The first and third assignments are not well taken. Under the statutes of Texas it may be true that the district court of El Paso county was not compelled to assume jurisdiction of and try a cause, even though it was transitory in its nature; and had the district court, in the exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would not have felt called upon to review its action. The court, however, had the power to try the case as to the personal property between citizens of other states, even where the cause of action arose in another state; and when it assumed jurisdiction its action will not be disturbed in the absence of any facts tending to show that there was an abuse of its discretion. Morris v. Railway Co., 78 Tex. 17, 14 S. W. 228; Gardner v. Thomas, 14 Johns. 133. We are of the opinion that the cause of action so far as it concerned the personal property, was a cause that might have arisen anywhere, and was therefore transitory. Cooley, Torts, 471. The action, so far as it concerned the house, could only have arisen where the house stood, and was local. We cannot go into the question of fixtures, and inquire into the possibility of the owner at some day removing the house, and giving it the character of personal property.

The second and fourth assignments of error raise the question of limitation. It is contended that, the suit having been originally brought against the Southern Pacific Railway Company, and the amendment, setting up a mistake in the name, and alleging that appellant was the corporation intended to be sued, having been filed after the expiration of the statutory time, the cause of action was barred. In the original petition the corporation is described as operating a railroad into and through El Paso county, Tex., that it was a foreign corporation, that appellee's property was situated on the railroad owned and operated by the defendant at a point known as "Hatch's Spur," and that H. D. Platt and Frank Voelcher were the agents of the corporation. To this there was no plea suggesting that the wrong defendant had been brought into court. In the amended petition the defendant is described in the same way, and that its name had been incorrectly given in the original petition, that the citation had been served on the agent of appellant, and that the attorneys of appellant had appeared and answered to the petition without any effort to correct the misnomer or mistake in name, and that the corporations were one and the same. It was proved that no such corporation as the Southern Pacific Company was in existence; that there was a Southern Pacific Railway Company, a New Mexico corporation, and that the Southern Pacific Company, a corporation chartered by the laws of Kentucky, had legally leased and was operating the railroad of the New Mexico corporation; that the Kentucky corporation owned the engine from which the sparks that caused the fire were emitted, and employed those operating it. It was also shown that it was the intention to sue the Southern Pacific Company, and that the word "Railway" was interpolated by mistake; that suits had been brought against the Southern Pacific Railway Company which had been paid and settled by the Southern Pacific Company. The testimony in fact shows clearly, not that the wrong defendant had been sued, but that no such corporation had ever existed as the Southern Pacific Railway Company, and there was clearly a misnomer of the Southern Pacific Company. This being the case, the amendment curing the defect was properly allowed. In an Alabama case it was held "that there is a well-marked distinction between a misnomer which incorrectly names a corporation but correctly describes it and the statement in the pleading of an entirely different party." Smith v. Railroad Co., 30 Ala. 650. Commenting on the above, Thompson, in his work on Corporations (volume 1, § 293), says: "The distinction is that an amendment is always allowable curing a mere misnomer of the real party which sues, but that an amendment is not allowable introducing an entirely different party as plaintiff, unless such party may properly be introduced as the successor in interest of the party originally bringing the action. And the same rule would, it is supposed, apply, mutatis mutandis, where a corporation is defendant." It has always been the rule to hold that a variance or mistake in the names of existing persons is not fatal to their contracts when there is sufficient description of the parties whereby they may be known, but there is a question whether this applied to corporations which must sue and be sued in this corporate name. In an early English case the mayor and burgesses of Lynn Regis, the defendant, who was sued on an obligation given to a corporation, interposed a plea of non est factum, and relied upon a variance in the bond from the true name of the corporation. The court gave judgment for the corporation. In another English case it was urged that, the corporation being a creature of the law, and having no...