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

• Decision Date: 30 January 1909
• Citation: 116 S.W. 403
• Parties: ST. LOUIS & S. F. R. CO. v. SIZEMORE et al.
• Court: Texas Court of Appeals

116 S.W. 403

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

Court of Civil Appeals of Texas.

January 30, 1909.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by W. J. Sizemore and others against the St. Louis Southwestern Railway Company of Texas and others. From a judgment entered against the St. Louis & San Francisco Railroad Company only, it appeals. Reversed.

C. H. Yoakum and Templeton, Crosby & Dinsmore, for appellant. B. Q. Evans, for appellees.

RAINEY, C. J.

W. J. Sizemore sued the St. Louis Southwestern Railway Company of Texas, the St. Louis Southwestern Railway Company, and the St. Louis & San Francisco Railroad Company to recover damages for personal injuries sustained by his wife, which resulted in death, while traveling as a passenger on a train of the St. Louis & San Francisco Railroad Company, at Memphis, Tenn., on a ticket entitling her to transportation from Columbus, Ga., to Commerce, Tex., over the roads named as defendants. The petition alleged: That plaintiff sues for the benefit of J. H. Sizemore, G. W. Sizemore, B. F. Sizemore, F. H. Sizemore, and Mrs. E. H. Riley, joined by her husband, J. T. Riley. That the St. Louis & San Francisco Railroad Company and the St. Louis Southwestern Railway Company are corporations and are incorporated under the laws of the state of Missouri. That the St. Louis Southwestern Railway Company of Texas is incorporated under the laws of the state of Texas and has an office and local agent in Greenville, Hunt county, Tex. That each of the defendants has an agent and representative in Hunt county, Tex., and had at the time the original suit was filed, and at the time plaintiff's wife was injured. That each of said defendants was a common carrier of passengers for hire and was engaged in operating railway trains and doing business in the state of Texas as a common carrier. That the said St. Louis Southwestern Railway Company of Texas owns and operates a line of railroad from Texarkana, Tex., to Ft. Worth, Tex., running through Hunt county. That the St. Louis Southwestern Railway Company operates its trains from Memphis, Tenn., to Texarkana, Tex., passing 1,000 feet into the state of Texas to the passenger depot of the St. Louis Southwestern Railway Company of Texas. That the St. Louis & San Francisco Railroad Company was, at the time of the injury complained of and at the time of filing the suit and at the time of trial, operating its trains from Arthur City, on Red river, to Paris, Tex., over the lines of railroads supposed to belong to the Paris & Great Northern Railway Company, a distance of 15 or 20 miles into the state of Texas. That the Paris & Great Northern Railway Company is owned and operated by the St. Louis & San Francisco Railroad Company, a defendant, and was at the time of the matters complained of in the petition, or, if it was not so owned, it is alleged that the Paris & Great Northern Railway Company and appellant were copartners in the business of common carriers. That the two St. Louis Southwestern Railway Companies were partners in the business of common carriers and held themselves out as partners in the business of carriers from Memphis, Tenn., to Commerce, Tex. That at the time of the injury and at the time of filing the petitions each of the said defendants were represented in Hunt county, Tex., by agents, as follows: P. A. Cox, J. P. Reagan, the Texas Midland Railroad, and the St. Louis Southwestern Railway Company of Texas, each of whom was engaged in the sale of tickets and making contracts for the transportation of both freight and passengers over each of the roads of the defendants from Columbus, Ga., to Commerce, Tex. That all of the defendants are copartners as common carriers. That the St. Louis & San Francisco Railroad Company operated its train commanded by its own conductors over the line of the Paris & Great Northern Railroad from Arthur City, on Red river, to Paris, Tex. And that the Paris & Great Northern Railroad Company owns no rolling stock and operates no trains over the said railroad. Judgment was entered against the St. Louis & San Francisco Railroad Company only, and, as that is the only company appealing, we only mention the proceedings that affect it.

The St. Louis & San Francisco Railroad Company filed its plea to the jurisdiction of the court, wherein it is alleged: That it is a foreign corporation; that it neither owns nor operates any line of railroad anywhere in the bounds of the state of Texas; that it had no agent or representative in the county of Hunt or state of Texas; that it made no contract in writing connected with plaintiff's cause of action which would confer jurisdiction on the courts of Hunt county; that if a ticket was sold at Columbus, Ga., as alleged, the agent selling the ticket was the agent of another and not of said defendant, and negativing other matters which might confer jurisdiction. It, also, as a part of said plea to the jurisdiction, under oath, denied partnership with either of the other defendants. It also alleges that its domicile is in the city of St. Louis and state of Missouri. It is also alleged that all matters stated in the petition which are claimed to have the effect, or might seem to have the effect, of laying venue as against it in the county of Hunt and state of Texas, are untrue and falsely and fraudulently made for the sole purpose of giving jurisdiction. It also alleges that it has not and has never had in the county of Hunt and state of Texas any such agent or representative as might under the act of the Legislature of the state of Texas, approved March 13, 1905 (Laws 1905, p. 29, c. 25), confer jurisdiction upon the courts of Hunt county; and it is also alleged that said act of the Legislature of Texas of March 13, 1905, is ineffectual to confer jurisdiction because it is in violation of the Constitution of the state of Texas, and is repugnant to subdivision 3 of section 1 of article 1 of the Constitution of the United States of America, which confers upon the Congress of the United States the power to regulate commerce among the several states, and that it is invalid because it would have the effect of imposing a direct and improper impediment and burden upon the pursuit of interstate commerce. And in connection with this plea to the jurisdiction the said St. Louis & San Francisco Railroad Company of Texas filed motion to quash the service of the citation issued in the cause for said defendant and served on P. A. Cox, J. P. Reagan, and W. H. Such, which were the citations for said defendant issued and served, and relied on in the suit.

The plea to the jurisdiction was submitted to the court, and after hearing the evidence relating thereto it was overruled. Complaint is made of this ruling of the court. The facts adduced on the hearing of the plea show that the court did not err in holding that the district court of Hunt county had jurisdiction of all the defendants in this case. They show that defendants were connecting carriers and plaintiff's wife traveled over each of said roads from Columbus, Ga., to Commerce, Hunt county, on a ticket entitling her to such passage, and that all the defendants operate trains in this state; the St. Louis & Southwestern Railway Company of Texas line running through Hunt county. The St. Louis & San Francisco Railroad Company operates its trains from Archer City, on the state line, to Paris, Tex., over the road of the Paris & Great Northern Railway Company, a domestic corporation. In its first plea to the jurisdiction the St. Louis & San Francisco Railroad Company pleaded that it had an agent and representative in Tarrant county, Tex., in the person of M. H. Meeks and there maintained an office for the transaction of its business, and that its principal office was not in Hunt county, but in the county of Tarrant, which plea was sworn to. Under the act of the Legislature (Laws 1905, p. 29) we are of the opinion that the district court of Hunt county properly assumed jurisdiction of this appellant.

Complaint is made of the court in not sustaining the motion of appellant to quash the service of citation, which motion was made in connection with its plea to the jurisdiction. Citation was served by the sheriff of Lamar county, Tex., on W. H. Such, a conductor who operated one of appellant's trains over the Paris & Great Northern Road. The contention is that said W. H. Such at the time of service was not operating a train for appellant, but was then a conductor in the employ of the Paris & Great Northern Railway Company. The evidence for the appellant is to the effect that the railroad of appellant extends from St. Louis, Mo., through Missouri, Arkansas, and the Indian Territory, to the north bank of Red river at Arthur City. The Paris & Great Northern Railway Company is a Texas corporation and owns the railroad from Red river at Arthur City to Paris, Tex., a distance of about 20 miles. The Paris & Great Northern Railway Company keeps its offices and general officers at Paris, Lamar county, Tex. Some of the officers of appellant are also officers of the Paris & Great Northern Railway Company. The Paris & Great Northern was not built by the Frisco, but floated its own bonds and built its own road, and was built before the Frisco reached Red river. S. J. Wright, J. C. Gibbons, J. F. McReynolds, and H. D. McDonald, all citizens of Paris, Tex., together own 25 shares of the capital stock of the Paris & Great Northern Railroad. The remainder of said capital stock, 4,955 shares, is owned by appellant. Prior to 1903 the Paris & Great Northern leased its track to appellant, and said track was operated by appellant. Since 1902 the Paris & Great Northern Railway Company has owned, controlled, and operated its road under the directions of, and in accordance with a plan prescribed by, the Railway Commission of Texas. The cars and trains of appellant run over the Paris & Great Northern Railroad. This is done upon a...