Southern Pacific Co. v. W. T. Meadors & Co.

CONNER. Chief Justice. — This suit was instituted in the District Court of Mitchell County by appellees against the Southern Pacific Company, a foreign corporation, and against the Texas & Pacific Railway Company whose line of railway is operated through Mitchell County, to recover damages to two several shipments of horses loaded at points in the Territory of Arizona, on the line of the first named company and transported to El Paso, Texas, and thence over the line of the Texas & Pacific Railway Company to Pecos, and to Colorado City, Texas. Through bills of lading were issued by the Southern Pacific Company, but the transportation, as appellant alleges, was upon the terms of written contracts limiting the liability of the initial carrier. Appellant pleaded, among other things not necessary to notice, that no part of its road was operated in Texas, and asserted its privilege of being sued, if at all, in Galveston County, where only it had an agent in this State. The court heard appellant’s plea of privilege upon its merits and overruled it. Thereafter, a trial before a jury resulted in a judgment for appellees in the sum of four hundred dollars against the Texas & Pacific Railway Company and for the further sum of one thousand, seven hundred and fifty dollars against the Southern Pacific Company, from which judgment 'the latter company alone has appealed. Perhaps the most material question presented is that raised by appellant’s second assignment of error, complaining of the action of the court .in overruling its plea of privilege. The plea is in due form; avers that appellant is a foreign corporation and neither owns nor operates a line of railway in the State of Texas; that it had but one agent in Texas, who was located at Galveston, where alone, if at all, the suit could be maintained, and that the Texas & Pacific Railway Company had been joined as a co-defendant for the fraudulent purpose "of conferring jurisdiction upon the court. No evidence in support of this latter allegation is pointed out and we assume that there is none. Appellant’s proposition is that “this was an interstate ship [37] ment, originating in the Territory of Arizona and destined to point in Texas. There was no allegation of a through or joint contract for said shipment,, and the proof showed affirmatively that it was not a through or joint contract of shipment. The appellant was a foreign corporation with no railroad in Texas, and not engaged in any railroad business in Texas, and if it could be sued in Texas at all, it was entitled to-be sued in Galveston County, where the only agent it has in Texas was located.” Section 1 of the Act approved March 13, 1905, provides: “That whenever any passenger, freight, baggage or other property has been transported by two or more railway companies -. . . or partly by one or more such companies . . . operating or doing business as such common carriers in this State, or having an agent or representative in this State, suit for damege or loss or for any other cause of action arising out of such carriage, transportation or contract in relation thereto, may be brought against any one or all of such common carriers ... so operating or doing business in this State, or having an agent or representative in this State, in any court of competent jurisdiction in any county in which either of such common carriers . . . operates or does business, or has an agent or representative: provided, however, that if damages be recovered in such suits against more than one defendant, not partners in such carriage, transportation or contract, the same shall on request "of either party be apportioned between the defendants by the verdict of the jury, or if no jury be demanded, then by the judgment of the court.” See General Laws, 1905, page 29. It is not contended, nor can it be, that the allegations of appellees’ petition do not state a cause of action against the Texas & Pacific Bailway Company maintainable in Mitchell County, nor can it be contended that a cause of action is not stated as against appellant. In the absence of proof, therefore, of the averment that the Texas & Pacific Bailway Company was joined in the suit for the fraudulent purpose of conferring jurisdiction, the law above quoted authorized suit against appellant in Mitchell County, it having an agent in this- State, regardless of the question whether dr not it operated any part of its road in Texas. See Atchison, T. & S. F. Ry. Co., v. Williams, 38 Texas Civ. App., 405 (86 S. W., 38); Toland v. Sutherlin, 49 Texas Civ. App., 538 (110 S. W., 487). Appellant also insists in substance that by the terms of its written contracts of shipment which were read in evidence, its liability was limited to damages occurring on its own line as well also as in the amount recoverable. Assuming that the contracts were as asserted by appellant and not oral and without limitation, as appellees pleaded, we nevertheless think appellant’s contentions wholly untenable in view of section 20 of the Act of Congress, June 29, 1906, amending an Act to regulate commerce, which provides among other things: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State, to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, [38] railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.” See Supplement, 1907, Federal Statutes, Anno., page 180. By the terms of this Act appellant is therefore liable upon the through bill of lading issued by it, regardless of the attempted limitations of the contract. See Louisville & E. R. Co. v. Scott, 118 S. W., 990; Galveston, H. & S. A. Ry. v. Wallace, 117 S. W., 169. It also follows that it is immaterial that the transportation of appellees’ horses from the Arizona line to El Paso was over the Galveston, H. & S. A. Railway, and the court correctly refused all special charges in aid of the limitations of the contract. We conclude that all assignments should be overruled and the judgment affirmed.