Chicago, R. I. & G. Ry. Co. v. Trout, 206 S.W. 829

Chicago, R. I. & G. Ry. Co. v. Trout

206 S.W. 829 | Tex. Comm'n App. | 1918

SADLER, J.

(after stating the facts as above). [1] The first assignment of error complains of the action of the court in refusing to strike out the trial amendment *830and in overruling the application for a continuance. There was no reversible error in this, since the issue presented by the trial amendment was not submitted in the court’s charge.

[2] Plaintiffs in error complain of the charge of the court in submitting to the jury the question of partnership, complain that the evidence was insufficient to show partnership and to sustain the verdict and judgment. The evidence is insufficient to establish partnership. S. P. Ry. Co. v. Meadors & Co., 104 Tex. 469, 140 S. W. 427; H. & T. C. Ry. Co. v. McFadden & Co., 91 Tex. 194, 40 S. W. 216, 42 S. W. 593; T. B. & H. Ry. Co. v. Warner, 84 Tex. 122, 19 S. W. 449, 20 S. W. 823; W. U. Tel. Co. v. Pennsylvania Co., 129 Fed. 849, 64 C. C. A. 285, 68 L. R. A. 968; Stone v. Cleveland, C., C. & S. L. Ry. Co., 202 N. Y. 352, 95 N. E. 816, 35 L. R. A. (N. S.) 770.

An analysis of these authorities is believed to sustain the proposition that the evidence in this case is insufficient to show the existence of the relationship of partners between the two railway companies. It rather shows that they were independent actors. The evidence, does not sufficiently show that the plaintiffs in error were so acting together as to constitute a holding out of themselves to the defendant in error as partners. The defendant in error earnestly insists that under the holding in Buie v. C., R. I. & Pacific Co., 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, the evidence establishes partnership; hut a .careful consideration of that case discloses that the question before the court was not one of partnership, hut rather of jurisdiction over the person, of the Chicago Rock Island & Pacific Railway Company.

In Peterson v. C., R. I. & P. Ry. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841, the Supreme Court of the United States in a very exhaustive opinion holds contrary to the holding in 95 Tex. 51, 65 S. W. 27, 55 L. R. A. 861, supra. Neither of these opinions involves the question of partnership, since it was not necessary to the disposition of the cases.

Prior to the date of the injury alleged and on that date, the Tucumeari & Memphis Railway Company, under charter granted by the territory of New Mexico, was building and maintaining the line of railway from Tucumeari to a junction point with the Gulf Company line at the state boundary common to the territory of New Mexico and the state of Texas; said line of road being ‘wholly within said territory. The El Paso Company is not shown to have had any connection with this railroad prior to May 8, 1910, a date subsequent to that of the alleged injury. The evidence is insufficient to show that the El Paso Company owed any duty to the defendant in error, or that he was employed by it, or that it caused his injury, or that it had any connection with the Tu-cumeari & Memphis Railway Company at the time of his injury. Quanah, A. & P. Ry. Co. v. Price, 192 S. W. 805; Gulf, Colorado & Santa Fe Ry. Co. v. Miller, 98 Tex. 267, 83 S. W. 182; Ft. Worth & Denver Ry. Co. v. Ballou, 174 S. W. 337.

In view of the disposition to be made of this case, the other questions raised on the trial will not be considered, since, probably, they will not arise on another trial.

On account of the insufficiency of the evidence to show liability of the appellants in error as partners and to support the submission of tlie right of defendant in error to recover against plaintiffs in error in that relation, we are of opinion that the judgment of the Court of Civil Appeals of the Seventh District and of the district court should be reversed, and that the cause should be remanded for a new trial.

PHILLIPS, C. <T. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.

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