The Oriental v. Barclay

• Citation: 41 S.W. 117
• Parties: THE ORIENTAL et al. v. BARCLAY.
• Decision Date: 03 April 1897
• Court: Court of Appeals of Texas

41 S.W. 117

THE ORIENTAL et al. v. BARCLAY.

Court of Civil Appeals of Texas.

April 3, 1897.

COPYRIGHT MATERIAL OMITTED

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Maggie Barclay against the Oriental Investment Company and others. From a judgment for plaintiff, defendants the Oriental and the Oriental Investment Company appeal. Reversed.

Philip Lindsley, McCormick & Spence, and McLaurin & Wozencraft, for appellants. Parks & Carden, for appellee.

FINLEY, J.

The general statement of the nature of the case contained in the brief of the Oriental Investment Company appellant, is sufficiently accurate and full to render the points discussed in the opinion clear, with the aid of the further statements made in the opinion. We will therefore use such statement.

This suit was originally brought by plaintiff below, Maggie Barclay, against the defendants the Oriental Hotel Company, a Texas corporation, and W. J. Alden, a resident of Dallas, Tex. By amendment, plaintiff also sued the Oriental, a Texas corporation, and the Oriental Investment Company, a St. Louis, Mo., corporation. Subsequently the suit was dismissed as to the Oriental Hotel Company. This suit is against these three remaining defendants for an alleged joint tort alleged to have been committed by the defendants in the operation of a freight elevator in the Oriental Hotel, at Dallas, upon which plaintiff was riding at the time it fell and injured her; all three of the defendants being alleged to have been at the time jointly operating said hotel and elevator. Plaintiff alleges that on January 26, 1894, and prior thereto, the defendants were operating the hotel in Dallas, Tex., known as the "Oriental Hotel"; that plaintiff was then in the employ of the defendants as chambermaid; that as such it was her duty to go upon all the floors of the hotel, with linens, bedclothes, etc.; that said hotel contained six floors, all connected by an elevator known as a "freight elevator," but which was in fact both a freight and a passenger elevator, upon which the linens, etc., and passengers were carried to and from the different floors, and upon which plaintiff was permitted and required to ride in carrying linen, etc., to and from the different floors; that said elevator was negligently, improperly, and unskillfuly constructed by defendants, and out of repair, as was the engine connected therewith; that the operator of said elevator was incompetent, inexperienced, and unskillful, and grossly negligent in the performance of his duties, and that the defendants were aware of the same; that by reason of all of which said elevator on January 26, 1894, while plaintiff was in the same in the discharge of her duties as chambermaid, fell from the top story, some 100 feet, to the ground floor, breaking plaintiff's leg, permanently injuring it, and inflicting other injuries upon other portions of her body; that defendants, while she was in almost a dying condition, through threats, fraud, etc., compelled plaintiff to sign a release of her damages for said injuries; that said release was wholly without consideration. And she for the first time asked the cancellation of said release in her first supplemental petition, filed November 22, 1894, and there is the first reference by plaintiff, in any of her pleadings, to said release. Plaintiff claims $50,000 damages for said alleged injuries, against all three defendants. She further sues for $2,000 for past and future medicine and doctor's bills she claims to have become or will become liable for. Plaintiff alleges that defendants knew, or by the use of ordinary care could have known, of the defective construction and condition of said elevator, and that plaintiff was ignorant of the same, and that she was in the exercise of due care at the time said elevator fell, and that it fell without any negligence on her part; that at the date of her alleged injury she was about 25 years old, working for defendants at about $15 per month and board, and that by reason of the negligence of the defendants she has been deprived of her only means of support. Plaintiff prays that said release be set aside, and that she recover judgment, etc. There is also a second count to plaintiff's petition, wherein she also sues the three defendants, the Oriental, W. J. Alden, and the Oriental Investment Company; making against them, all and singular, the same allegation as in the first count, and adding thereto as follows: That on November 29, 1892, the Oriental Investment Company of St. Louis, Mo. (which will be designated hereafter in this statement as the "St. Louis Corporation"), bought the Oriental Hotel property, in Dallas, with intent to run an hotel thereon (the said property on that date being worth $800,000, and the furniture and fixtures subsequently bought worth $150,000, and the monthly expense of running hotel $40,000 per month), and that it requires a capital of $150,000 to run said hotel. That prior to the purchase of said hotel the Oriental Investment Company became incorporated under the laws of Missouri, its incorporators being William F. Nolker, Louis Brinckwith, Frank Roseman, Herman A. Haeussler, Mrs. Elizabeth Schnaider, Marquard Foster, Moses Greenwood, Jr., F. Harald, August Gehner, and Adolphus Busch, and all citizens of St. Louis; its capital stock, $250,000. That the purpose for which it was formed was "to purchase, own, and rent buildings erected for pecuniary profit and gain." That on September 30, 1893, the Oriental, a corporation, was organized under the laws of Texas, its corporators being W. J. Alden, Luis Reichenstein, A. T. Stevens, residents of Dallas, Tex., and Adolphus Busch, Louis Brinckwith, August Gehner, and H. A. Haeussler, of St. Louis, Mo., and its purpose, as stated in its charter, being the establishment and maintenance of an hotel; and its directors the first year were Reichenstein, Stevens, Alden, Busch, Brinckwith, Gehner, Haeussler. That its capital stock was $10,000, in shares of $100 each. (The Oriental is referred to hereafter in this statement as the "Texas Corporation.") That on September 30, 1893, the St. Louis Corporation by a pretended lease put the Texas Corporation in possession of said hotel premises. That if said Texas Corporation was in possession of said hotel as the lessee of the St. Louis Corporation on January 24, 1894, under a lease which bound the lessee to repair, still the St. Louis Corporation is liable to the plaintiff. That, while the lease binds the lessee to repair, yet it was agreed between the two corporations that the St. Louis Corporation should keep said hotel in repair. That since the execution of said lease the St. Louis Corporation has made and paid for improvements on said hotel costing some $60,000. That Alden, Stevens, and Reichenstein subscribed for stock in the Texas Corporation for the benefit of the St. Louis Corporation, and that they had never paid for their stock, and never had stock issued to them until after January 26, 1894. That Alden was not a resident or citizen of Texas at the formation of the Texas Corporation. That the stockholders of the St. Louis Corporation procured the three corporators of the Texas Corporation to join in its formation to escape liability, and to practice fraud upon the laws of Texas, and it was contrary to public policy. That the St. Louis Corporation or its stockholders paid for the stock in the Texas Corporation of Alden, Stevens, and Reichenstein, and that the stockholders of the former owned all of the stock in the latter, and have in fact run the latter in the interest of the former. That the directors of the Texas Corporation have never had a meeting at which Alden, Reichenstein, or Stevens attended, nor have the latter ever had anything to do with the management of the hotel, but that it has in fact been operated by the St. Louis Corporation, and all its needed supplies furnished by it. That at the date of the delivery of possession of said hotel to the Texas Corporation by the St. Louis Corporation the freight elevator therein was in dangerous condition and a nuisance, and so known to be by the latter, and that the latter knew that the Texas Corporation would use it to carry chambermaids on. That the Texas Corporation at the date of the lease did not know of the faulty construction and bad condition of the elevator. That the St. Louis Corporation acted with fraud and deceit to the Texas Corporation in the execution of said lease, and that the Texas Corporation relied upon the representations of its lessor, and believed them to be true. Then plaintiff right here alleges that said lease was made after said injury to plaintiff occurred, and was fraudulently antedated to shield the St. Louis Corporation from liability, and that said lease is void, and that the charter of the Texas Corporation is a fraud, but, if a valid corporation, then it acted as the agent of the St. Louis Corporation, and that both are liable to plaintiff.

Appellant the Oriental Investment Company interposed the following defenses: (1) General demurrer and special exceptions, given in full as assignments of error. (2) General denial. (3) Special answer, in which it admits that it is owner of the said hotel property; that it is a Missouri corporation, formed for the purposes stated in plaintiff's petition; that the Oriental was incorporated for the purposes alleged by plaintiff. It alleges that those who became its incorporators had made a loan of $250,000 with which to build said hotel; had to foreclose the mortgage which secured the loan; that at the sale it was bid off by H. A. Haeussler in their interest, and by him conveyed to the St. Louis Corporation. It denies that it acquired the property with intent to operate an hotel thereon, and never did intend to run an hotel, and never incorporated for any such purpose. Denies that the property was worth one-third of $600,000, or its furniture and fixtures one-half of...