Citation Numbers: 145 S.W. 623, 1912 Tex. App. LEXIS 572
Judges: Peticolas
Filed Date: 3/7/1912
Status: Precedential
Modified Date: 10/19/2024
This was a suit by the appellees against the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, a Kansas corporation, for damages to a shipment of 72 head of cattle between Sweetwater, Tex., and East St. Louis. The suit was brought under the Hepburn Act by appellees against the Texas & Pacific Railway Company, alleging that it had received the cattle and executed a bill of lading therefor. The Missouri, Kansas & Texas Railway Company, which will hereinafter be called the “Kansas Corporation,” filed a motion to quash the citation and return, purporting to show service on said defendant. It supported this motion to quash by the affidavit of W. N. King, of Denison, Tex., who was admitted to be the local agent at that point of the Missouri, Kansas & Texas Railway Company of Texas, which will hereinafter- be called the “Texas Corporation.” It also introduced evidence in support of its motion to quash.
We do not see any difference in submitting the matter as a question of fact to the jury or court trying the case, or raising it by motion to quash. In either instance, it is necessary to decide whether the person served comes within the terms of our statutes regulating service ■ upon foreign corporations. It is a pleasant fiction of the railroads operating under analogous circumstances that, although the Kansas corporation runs its trains into Texas to Den-ison, using the same crew and the same in-strumentalities, as they cross the Red river, the crew operating said train cease to be the servants of the Kansas corporation and become servants of the Texas corporation.
In Buie v. Chicago, R. I. & P. Ry. Co., 95 Tex. 64, 65 S. W. 30, 55 L. R. A. 861, is quoted with approval the following extract from a New York ease: “We have of late refused to be always and utterly trammeled by the logic derived from corporate existence, where it only serves to distort or hide the truth. This court has always refused to be controlled by technicalities, when interposed to prevent an investigation into the real facts of a case. Courts will look beneath the mask of legal forms for the real facts of any transaction presented to them for investigation.” The case cited is by Chief Justice Brown of the Supreme Court, and is of particular interest in reference to appellant’s contention that, as the law requires a Texas corporation in Texas, therefore the employes of the Kansas corporation, upon reaching the Red river, must perforce become the employes of the Texas company. In the same ease, Judge Brown says again: “The men who constitute the crews on the freight and passenger trains which, leaving Ft. Worth, go northward are nominally in the employ of the Texas corporation until the imaginary state line has been passed, when, by some kind of mysterious change, they become employes of the foreign company; returning they undergo a similar change in reverse order” — and decided in that case that the local company’s employés were the agents of the foreign company.
We do not find it necessary to go quite that far in this case; but we think the facts show that the Kansas company was doing business in Texas. It may have only been from the Red river to Denison; it may have •been one mile, or one-half mile, or 100 yards; but whenever the Kansas company habitually ran its trains, with its employés, into Texas, it then and there was doing business in the state. It being admitted that Mr. King made contracts for transportation of freight over the Kansas company, he is, within our statutes, a local agent of the Kansas company. We have no doubt that, as against the constitutional objection urged, the state has power, as against foreign corporations doing business in the state, to prescribe who shall be local agents upon whom service may be had. It is true that the case of Peterson v. Railway Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841, is not quite in accord with this view; but it seems to be conceded by the Supreme Court of the United States that the question of who is the local agent, when arising in a state court and under a state statute, is to some extent a question of procedure which the state has power to determine for itself. See Green v. Railway, 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 917, in which they differentiate that case from state cases of opposite holding, on the ground that the other cases were in the state courts, and were questions of interpretation of state statutes. It is, perhaps, not necessary to so decide in this case; but we very much incline to the view that the determination of who is a local agent of a foreign corporation, arising in a- case brought in a state court, is a determination of a matter of procedure by those courts as to which the statutes and decisions of the state are controlling.
For the reasons indicated, the case is affirmed.