SOUTHERN PAC. R. CO. v. W. T. MEADORS & CO., 140 S.W. 427

BROWN, C. J. Meadors & Co,, defendants in error, delivered to the Southern Pacific Railroad Company, plaintiff in error, at Bowie, Ariz., horses to be transported by it to its connection with the Galveston, Harrisburg & San Antonio Railroad Company, which company transported the said horses to El Paso, Tex., and delivered them to the Texas & Pacific Railway Company to be carried to Colorado in Mitchell county, Tex. Meadors & Co. shipped their horses from another place in Arizona on a different railroad to Bowie and there delivered them to the Southern Pacific Railroad Company.

Before shipping the horses to Bowie, Meadors & Co. arranged with the Southern Pacific Railroad Company to have sufficient cars at Bowie to transport the horses to their destination, and, upon the arrival of the horses at Bowie, Meadors & Co. loaded them upon the cars, which were furnished by the Southern Pacific Railroad Company, ready for transportation to their destination in Mitchell county, Tex.

After the horses had been loaded upon the cars, being done on different days, however, the railroad company presented to Meadors & Co., and to their agents in charge of the horses, written contracts which were put in evidence on the trial of this case. The parties who signed the contracts did not know their contents and did not read them, but signed them at the request and suggestion of the railroad agent in order that they might secure passes to ride on the trains with the horses as they were being transported.

There was no consideration for the execution of the said contracts other than the transportation of the horses. After the horses were loaded, the cars were carried by the Southern Pacific Railroad Company to the end of its line at the center of the Rio Grande river, and, in the same cars, hauled by the same engine and operated by the same employes, the horses were then transported on the railroad of the Galveston, Harrisburg & San Antonio to El Paso, at which place the horses were transferred to the Texas & Pacific Railway Company.

Meadors & Co. instituted suit in Mitchell county against the Texas & Pacific Railway Company, the Galveston, Harrisburg & San Antonio Railroad Company, and the Southern Pacific Railway Company. The Texas & Pacific Railway runs through Mitchell 'county and has a station and agent in that county. The Galveston, Harrisburg & San Antonio Railway Company is a Texas corporation, but had no railroad agent nor office in Mitchell county. The Southern Pacific Railway Company is a foreign corporation; its charter having been granted by the state of Kentucky.

It owned no railroad in Texas, nor did it operate any railroad in this state. It had an agent at Galveston, and through that agent was transacting business in Texas. The Southern Pacific Railway Company pleaded to the jurisdiction of the court in Mitchell county and claimed its privilege to be sued in Galveston if it was liable to suit at all in the state.

That company also pleaded written contracts signed by Meadors & Co. and their employés, whereby said railroad undertook to transport the horses from Bowie, Ariz., to Colorado City in Mitchell county, Tex., and in said contracts was a clause limiting to its own line the liability of the Southern Pacific Railway Company for damages that might accrue to said horses.

Meadors & Co. filed a reply to the plea of the Southern Pacific Railway Company, in which they alleged that there was no consideration for the said contracts, and that they had signed them under the circumstances above stated without knowing their contents and after the contract for shipment had been made and the horses placed upon the cars; wherefore they claimed that the contracts were invalid and not their contracts. The plaintiffs did not rely upon the contracts for their recovery, but distinctly claimed a right to recover upon the verbal contract which was made before the horses were shipped.

The trial court overruled the plea to the jurisdiction filed by the Southern Pacific Railway Company; and, the Texas & Pacific Railway Company having agreed to an amount for which it would submit to judgment, the court entered judgment against the Texas & Pacific Railway Company. It was charged in the petition that the Southern Pacific Railway Company and the Galveston, Harrisburg & San Antonio Railway Company were partners and agents each of the other, and that therefore the two were jointly and equally liable for the damages.

Upon a trial verdict was rendered by the jury in favor of Meadors & Co. against the Southern Pacific Railway Company, which judgment was affirmed by the Court of Civil Appeals of the Second District. 129 S. W. 170. The Twenty-Ninth Legislature enacted a law of which the following is a part: “Section 1.

Be it enacted by the Legislature of the state of Texas: That whenever any passenger, freight, baggage or other property has been transported by two or more railroad companies * * * doing business as such common carriers in this state, or having an agent or representative in this state, suit for damage 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 is demanded, then by the judgment of the court.” Acts 29th Leg. c. 25.

It is only necessary to call attention to tlie language of the law to show that the Southern Pacific Railway Company, having an agent in this state, was liable to be sued in connection with the other'railroads in the county of Mitchell where the Texas & Pacific Railway Company, one 'of the defendants, had an office and agent and through which county its railroad was operated. M., K. & T. Ry. Co. v. Blanks, 125 S. W. 313. The case of Railway Co. v. Lynch, 97 Tex. 25, 75 S.

W. 486, which is cited and relied upon by the railroad company, was decided under a different statute, and the Blanks Case, supra, distinguishes the Lynch Case, pointing out the differences in the two statutes. The Southern Pacific Railway Company submits the following assignment: “The court erred in submitting to the jury the issue of whether or not the Southern Pacific Company and the Galveston, Harrisburg & San Antonio Railway Company were partners or agents of each other.” We are of opinion that this assignment is well taken.

The fact that the Southern Pacific Company owned a greater part of the stock of the Galveston, Harrisburg & San Antonio Railway Company, and that the same person was president of both corporations, does not prove that the companies were partners, nor that they were agents of each other. The two corporations were distinct entities, and Harriman, as president of the Southern Pacific Company, was a distinct official from the same man as president of the Galveston, Harrisburg & San Antonio Railway Company.

The ownership of stock in the Galveston, Harrisburg & San Antonio Railway Company imposed upon the Southern Pacific Company no greater liability nor different relation than it would if the same stock had been owned by an individual. The manner in which the trains were operated across the imaginary line between the railroads is suggestive of some peculiar relationship between the railroad companies; but we are not of opinion that the facts are sufficient to sustain the judgment against the Southern Pacific Company as the agent or partner of the Galveston, Harrisburg & San Antonio Railway Company.

The judgment will be reversed, and the cause remanded, with instructions that, unless there shall be other evidence to establish that relationship, to submit to the jury against the Southern Pacific Company only the issue of damages caused on its own line.

The third assignment of error in this court is based upon the refusal of the district judge to give charge No. 20, which reads: “The court erred in refusing special charge No. 20, requested by defendant, as follows: ‘You are instructed that the shipping contracts in this case, having been executed in the territory of Arizona, are governed by the law there, and that under the laws of such territory such contracts are valid.’ ” Since the plaintiffs claim nothing upon the written contracts referred to in the charge, it was unimportant and irrelevant to any question in this case, whether the contracts were governed by the laws of the territory of Arizona or of Texas.

The contracts were set up as a defense on the part of the defendant, and their existence as such were denied by the plaintiffs. There was no question as to their legal effect — therefore unnecessary for the court to give the charge requested.

The fourth ground of error assigned in the application reads: “The court erred in refusing special charge No. 19, requested by defendant, which is as follows: ‘You are charged that the plaintiffs cannot recover of defendant Southern Pacific Company for any delays, if any, or any injuries, if any, occurring to the horses involved after they were delivered to the Union Stockyards in El Paso, and you will' so find.’ ” The statement of facts' are not sufficiently definite for us to determine whether this charge was proper or not.

If the horses were delivered to the El Paso Stockyards at the request or instance of the plaintiffs, then the charge should have been given, for whenever the Galveston, Harrisburg & San Antonio Railway Company delivered the horses to the plaintiffs, or to some person, other than the Texas & Pacific Railway Company, authorized to receive them, its liability ceased.

The sixth ground of error assigned in this court is unimportant, for the reason that the plaintiffs denied the contracts as a whole, whether signed by their authority or by themselves, and the binding force of the contracts do not depend upon the authority of the person who signed them, but upon other questions which will be hereinafter discussed. There was no error on the part of the court in submitting to the jury the question of whether there was an oral or implied contract on the part of the Southern Pacific Railroad Company to carry the horses.

The testimony shows, as given by Meadors himself, that he applied to the railroad company to ship his horses .over the route indicated; that is, not upon its own line only, but upon the lines of the Galveston, Harrisburg & San Antonio Railway Company and the Texas & Pacific Railway Company. The agent replied, “Bring your horses, and the ears will be ready.” The horses were brought in, and, without anything further being said, the cars were furnished by the railroad company and the horses loaded upon the cars, after which the contracts were presented for signature and were signed.

The court properly submitted to the jury whether or not the contracts which were set - up by the defendant were the contracts of the plaintiffs, and there was no error in the submission.

If the Southern Pacific Company received the horses for shipment, furnishing the cars for that purpose, without demanding any written contract of the parties, and, after the horses were upon the cars and the train about to leave, the contracts were presented to the men in charge, or to the shipper, for signature, and if the shipper or the person who signed them did not know the contents of the contracts and had no time for reading them, and signed them under these conditions in order to secure the passes to attend the horses, such contracts would not be the contracts of the shipper, and the limitation which restricted the liability of the railroad company to damages accruing on its own line was not binding upon the shipper.

Railway Co. v Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; Railway Co. v. Withers, 16 Tex. Civ. App. 506, 40 S. W. 1073; Railway Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565. We might add a number of decisions of the Courts of Civil Appeals on this point in many of which writs of error have been refused by this court, all holding distinctly the proposition we' have stated above. The court, committed no error in instructing the jury as stated in the application. The eighth ground of error is, in substance, well taken if the facts should be of such a nature as to require it to be given.

But at the time the case was tried there were but two railroad companies parties, the claim against the Texas & Pacific Company having been adjusted, and the question. of damages or not lay against the Southern Pacific Company upon two grounds: First, on account of its own action; and, secondly, because it was the agent or partner of the Galveston, Harrisburg & San Antonio Railroad Company. Under this state of case it was unnecessary to give the charge requested as to the presumption as in case of a carriage by several railroad companies.

Besides, there was evidence to the fact that the horses were damaged when they were delivered to the stockyards in EL Paso. The ninth and tenth grounds were unimportant in the trial, for the reason that the plaintiffs did not claim under the contracts, but denied their validity which was submitted to the jury who found them to be invalid.

There was no evidence that the plaintiffs or any of the employés were intoxicated at the time nor after the time that the horses were delivered to the Southern Pacific Company, and, in fact, there was no evidence that tends to prove that there was any injury arising from the intoxication of any person who is said to have been intoxicated at the initial point of the freight.

The undisputed evidence in this case establishes the claim of the plaintiffs that the written contracts are of no validity against them; therefore the question concerning the act of Congress known as the Hepburn act is not material to the decision of this ease. It is ordered that the judgments of the district court and Court of Civil Appeals be reversed, and that the cause be remanded.