Conques v. Louisiana Western Ry. Co.

295 S.W. 935 | Tex. App. | 1927

^* Writ of error granted October 19, 1927. The question on appeal is that of whether or not the appellee is subject to the jurisdiction of the court of this state in which the suit is brought. The petition alleged that the appellee, a foreign corporation, operates a railroad as a common carrier of "both passengers and freight in the state of Texas and in the parish of Lafayette, La.," and "maintains officers and agents in Harris county, Tex." The appellant asserts and the appellee denies that these allegations are true It is not an open question, and it is a correct legal principle, that a nonresident corporation cannot be sued in personam otherwise than by consent, where it is not present or is not found doing business in the state in which the suit is brought. It is, however, the generally accepted rule that a corporation of one state may enter another state and transact business therein in such a manner and to such an extent as to make it present therein and subject it to the jurisdiction of its courts. Railway Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann.Cas. 1915B, 77; and other cases. As announced in the cases, "no all-embracing rule" as to what is "doing business" has been laid down, and the question has to be determined largely according to the facts of each individual case. Railway Co. v. Alexander, supra. All that is requisite is that enough of a substantial part of its ordinary corporation business be done in the state to enable the court to say that the corporation is present in the state. As generally held, the corporation may be fairly said to be present in the state and amenable to the process of the courts and to suit, where a continuous course of business, in such a sense as to be distinguishable from casual or sporadic transactions, is conducted by authorized agents within the state. The failure of the corporation to comply with statutory provisions precedent to doing business in the state does not render it any the less amenable to suit. Its presence is not required to be lawful. Buie v. Railway Co., 95 Tex. 51, 65 S.W. 27, 55 L.R.A. 861; 14 A. C.J. p. 1373.

In the present case it was an admitted fact that:

"All freight trains operated by the Louisiana Western Railway Company, originating in the state of Louisiana and destined to points in the state of Texas, are by the crews or employees of the Louisiana Western Railway Company brought to the center of Sabine river, and said trains are (then) carried across the Sabine river to the west side (in Texas) and are (there) delivered to the employees of the Texas New Orleans Railway Company; * * * that the train is placed on one of the side or switch tracks owned by the Texas New Orleans Railway Company by the employees of the Louisiana Western Railway Company and there accepted by the employees of the Texas New Orleans Railway Company."

This was the continuous and customary practice of operation of the road in Texas in furtherance of shipments originating on the appellee's line of road. The circumstances do not indicate a necessary operation of the road in the manner done in furtherance of delivery by the initial carrier of through shipments to its connecting carrier only at a practicable place, although across the state line. It does not appear that the appellee was of necessity required to make such delivery by running its trains, with its employees, a substantial distance into Texas. It rather appears that the appellee voluntarily operated its trains in the manner done merely as a way of carrying on its business. The two lines of railway were physically connected and continuous as one line of road, and it does not appear that side tracks or transfer tracks at the terminus of the appellee's road were of impracticable location by it and therefore did not exist. Traffic agreements may have existed, so far as the record shows. And, added to these circumstances, appear the admitted facts that the appellee sent its president, who was its active and chief directing officer, into Texas for actual abode, with maintenance of an office therein. It was admitted that Mr. Scott, on whom citation was personally served in Texas, was in fact the president of the Louisiana Western Railway Company, and that he actually resided and maintained an office for directing purposes "as president" in Houston, Harris county, Tex. His abode and maintenance of office of its kind in the state was fixed, and not merely for a season or short stay. He, as appears, performed "functions" or official duties for the company "in Texas" "as president of the Louisiana Western Railway Company." "The president" was evidently domiciled there for some purpose of acting in behalf of and in furtherance of the business of the appellee. It is significant of the purpose and intention of extending the field of operation, and that is the effect. He was "also president of the Southern Pacific Lines in the state of Texas." Holding, as he did, the two offices of president, in active conduct of the business, was evidently to have the roads under one management in one state, so as to make the separate corporations substantially one for purposes of management and operation. It is not inconsistent with or contradictory of "the presence in the state" of appellee that the president also "maintains general offices and his private office as president of the Louisiana Western Railway Company in the city of New Orleans, La.," and that "all functions executed in Texas by W. R. Scott as president of the Louisiana Western Railway Company are performed in Houston, Tex., by correspondence with officials of the Louisiana Western Railway Company located in New Orleans, La., either by mail or telegram." As president, in active conduct of the business of the company, he is to be distinguished from a person who has the management of some particular branch of the business. And his intentional absence from actual abode in the state of Louisiana was by consent and direction of the appellee. He is none the less president of the company, although actually abiding in Texas and although he delegates, as within authority of the president, to particular officers or agents, appointed by him, the authority to perform the duties or affairs of the company. Such agents or officers "in Louisiana" were under his authority and direction, and he, "as president," did direct their duties, as is evident by "correspondence" from "Houston, Texas." He was not holding the office of "president" merely nominally "in Texas." There is no lack of representative capacity "in Texas." It is not therefore a controlling fact that the president also maintains offices, in a qualified sense, in Louisiana, and uses "correspondence by mail or telegram" merely as a method or way of directing and ordering performance of duties by appointed agents or officers. Mr. Scott was an authorized agent of appellee, actually abiding within the state, in fact and by intention undertaking to act for and represent the appellee in a substantial portion of its business. It is the establishing a place of business in Texas from which, through its duly authorized "president," its business is transacted, and not the manner in which Mr. Scott did it, that constitutes the appellee "present within the state" through its resident president. The nature and character of business Mr. Scott performed was not, as shown, the equivalent of "nothing more than that of solicitation." Green v. Railway Co., 205 U.S. 530, 51 L. Ed. 916,27 S. Ct. 595, 51 L. Ed. 916.

Even though the business done is interstate rather than local is not controlling, as exempting appellee from service of process. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; Tauza v. Coal Co., 220 N.Y. 259, 115 N.E. 915; Armstrong Co. v. Railway Co., 129 Minn. 104, 151 N.W. 917, L.R.A. 1916E, 232, Ann.Cas. 1916E, 335. It is difficult to distinguish in principle the present case from St. Louis Southwestern R. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245,57 L. Ed. 488, Ann.Cas. 1915B, 77. There is a difference in the facts in the case of Atchison, T. S. F. R. Co. v. Weeks (C.C.A.) 254 F. 513. In the present case the appellee extended the field of operation to Texas by operating its trains in hauling and delivering freight, and established the abode of an authorized agent within the state in fact and by intention. It is believed that it may be fairly said that the appellee was present in the state in such sense as to make it amenable to the process of the courts and subject to suit herein.

The judgment is accordingly reversed and the cause remanded for trial.