St. Louis & S. F. R. Co. v. Blocker

• Decision Date: 20 April 1911
• Citation: 138 S.W. 156
• Parties: ST. LOUIS & S. F. R. CO. v. BLOCKER et al.
• Court: Texas Court of Appeals

138 S.W. 156

ST. LOUIS & S. F. R. CO. v. BLOCKER et al.

Court of Civil Appeals of Texas. Texarkana.

April 20, 1911.

On Motion for Rehearing, May 25, 1911.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by E. E. Blocker and others against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Andrews, Ball & Streetman, W. F. Evans, and Wright & Patrick, for appellant. Moore & Park, for appellees.

HODGES, J.

Appellees Blocker and Miller, under the firm name of Blocker-Miller Company, were engaged in the business of purchasing and shipping cedar poles and piling at points on the line of the appellant's right of way in the state of Oklahoma during the years 1905, 1906, and 1907. On the 8th day of April, 1907, a quantity of their poles which had been placed upon the right of way of the appellant at a station called Kellond Switch, in Oklahoma, were destroyed by fire, and this suit was instituted for the purpose of recovering damages occasioned thereby. The petition alleged that the fire was caused by sparks escaping from a passing locomotive owned by the appellant company, and charged negligence in the equipment and operation of the engine. The petition also alleged that the defendant was a railroad corporation operating a line of railroad from Ft. Smith, Ark., to Paris, Tex., and was engaged in the business of carrying freight and passengers for hire; that it had a local agent at Paris, Lamar county, Tex., named W. H. Upton, upon whom service by citation might be had. The aggregate damages sued for amounted to $1,925, the alleged value of the poles destroyed. The original petition was filed on the 8th day of May, 1908, and on the 19th day of the same month citation was served on Upton by the sheriff of Lamar county. On the 3d day of August following Upton, purporting to act as amicus curiæ, filed an affidavit in the court in which this cause was pending, stating, among other things, that at the time of the service of the citation upon him and at the time of filing his affidavit he was not the president, vice president, secretary, treasurer, general manager, local agent, or representative of any kind or character of the railroad company. To this affidavit the plaintiffs in the suit filed a reply reiterating the statement that Upton was the agent and local representative of the defendant railroad company at Paris, Lamar county, Tex., and alleging, in substance, that the defendant operated a continuous line of railroad from St. Louis, Mo., to Paris, Tex., a part of which was over tracks owned by the Paris & Great Northern Railway Company, a corporation chartered under the laws of the state of Texas; that the appellant, commonly called the Frisco Railway Company, constructed the track of the Paris & Great Northern Railway Company from Red river to the city of Paris; that the latter company owns no engines, cars, or equipment which would enable it to operate a railroad. It is also alleged that the officers, agents, and employés of the Paris & Great Northern Railway Company at Paris, Lamar county, Tex., were in fact the officers, agents, and employés of the defendant company. It seems that on the 10th day of August following the court considered the question of Upton's agency for the defendant company, and entered an order in which it is recited that "the court heard evidence, and, being fully advised, finds that the defendant St. Louis & San Francisco Railroad Company has been duly and legally served with citation, and that it should be required to answer in this suit." There also appears the following recitation: "To which action and ruling of the court the said defendant here now in open court duly excepts." On the same day the defendant filed an answer, in which it pleads in substance as follows: (1) A special exception to the petition "because the same shows upon its face that the court had no jurisdiction to hear and determine this cause so far as this defendant is concerned." (2) A plea elsewhere in the record referred to as a plea of privilege, in which it is alleged that the defendant was incorporated under the laws of the state of Missouri, and which denies that defendant was incorporated under the laws of Texas, or that it runs or operates any line of railroad in the state of Texas, but avers that all of its lines of road are wholly outside of this state. Then follow other specific denials usually employed in pleas of privilege where the right is claimed to be sued in some particular county of the state. It is further alleged that it has no agents or representatives within the state of Texas upon whom citation could be lawfully served, unless certain persons thereinafter named should be considered such. It then proceeds to name C. E. Wynne, Jr., whose residence and office are in the city of Ft. Worth, Tarrant county, Tex., and other parties whose residences and offices are in Dallas county, Harris county, and Bell county. It then sets out the connection which those parties have with the transaction of its business, showing, if true, that they were not representatives upon whom citation could be served so as to bind the defendant. (3) A general demurrer and a general denial. (4) A special answer in which the charges of negligence are specially denied and contributory negligence pleaded. It also pleads in this portion of the answer the execution of a release signed by one J. R. Bunn, who it avers was the duly authorized agent of the plaintiffs, by the terms of which the railway company was released from any liability for damages caused by fires originating from sparks from its locomotives, or fire communicated from other material along the right of way. On September 8, 1908, at the same term, the court heard evidence upon the plea in abatement, and decided against the defendant. On January 11, 1909, at a subsequent term of the court, the plaintiffs filed a supplemental petition, in which they denied under oath the execution by them, or by any one having authority from them, of the release pleaded and relied upon by the defendant in its answer. On August 13, 1909, the defendant filed a supplemental answer in which, among other things, it is alleged that, if Bunn had no special authority to execute the release before referred to, he was held out as plaintiffs' agent vested with general authority, and that Bunn transacted with defendant all the business connected with said cedar poles and piling; that he bought, paid for, stored, and shipped the same, and transacted all business with defendant in connection therewith prior to and after the execution of the release before mentioned; also, that the plaintiffs knew that it was defendant's universal practice to refuse to permit the storing of such material on its right of way until such a release had been executed; that plaintiffs have been continuously since the execution of that release storing cedar poles and piling and other material on the defendant's right of way under the terms of that contract. It is further alleged that the execution of the release by Bunn was within the scope of his apparent authority, and for that reason was binding upon the plaintiffs; that defendant relied upon the acts and representations of plaintiffs in holding out Bunn as their agent vested with general powers, and permitted the storing of said material on its right of way believing that it was fully protected by said contract. Appellant also pleaded that the plaintiffs were estopped from denying the powers of Bunn to execute said instrument. It is further alleged that, if Bunn was not authorized to execute the instrument, plaintiffs, by continuing to store said piling and other material on its right of way since its execution, with knowledge of Bunn's act, and without notifying defendant that Bunn had exceeded his authority, have acquiesced in and ratified the act of Bunn, and for that reason were bound by the release. On September 1, 1910, more than two years from the time defendant filed its original answer, the case was tried before a jury and a verdict rendered in favor of the plaintiffs for $1,450.

The first assigned error complains of the ruling of the court upon the affidavit of Upton as amicus curiæ in holding that the service upon him was sufficient, and in requiring the appellant to file an answer. This order was entered before any answer was filed or appearance entered by the defendant for any purpose. It is not easily perceived how the defendant in that situation could have been injuriously affected by any action of the court in the ruling complained of. If Upton at the time citation was served upon him was not the representative of the appellant, the service upon him was a nullity, and conferred no right upon the court to render a personal judgment against it. When called upon to make some order, or to render some judgment, that would affect the rights of the defendant in the suit, it became the duty of the court, without any suggestion from an amicus curiæ, to ascertain whether by service of citation or otherwise it had acquired jurisdiction over the person of the defendant. An amicus curiæ is in no sense the representative of either party to the litigation, and an order which involves an adjudication opposed to his suggestions does not affect the rights of the parties for whose benefit they may have been intended. Such suggestions do not authorize the court to do more than that which was its duty to do without them. Jones v. City of Jefferson, 66 Tex. 576, 1 S. W. 903. A judgment rendered without jurisdiction over the person of the defendant would be as vulnerable when preceded by an order like that here complained of as it would be without it. The defendant had the right, after this ruling, to answer or not as it saw proper, and the utmost the court could have done in the absence of an answer would have been to render a judgment by default. If appellant's rights were not affected by...