124 S.W. 903 | Tex. | 1910
In 1901 the Kirby Lumber Company was chartered under the laws of Texas and was authorized to erect and operate saw mills, planing mills, dry kilns, tram railroads, and all other necessary incidents to their business and on the 17th day of March, 1904, Joseph S. Rice and Cecil A. Lyon were appointed by the Circuit Court of the United States for the Southern District of Texas receivers of said corporation, vesting them with authority to conduct the business of said corporation. Among other properties of said corporation was a tram railroad about four miles long, constructed with cross ties and steel rails, with a saw mill to which it was appurtenant, which were situated in Sabine County, Texas. The railroad was run with locomotives, engines and cars and other rolling stock. While this tram *154 road was operated by the receivers the plaintiff, a brakeman on one of its trains, was, as found by the jury, injured through the negligence of the servants operating the train, and for this he brought his suit against the corporation and its receivers in Sabine County. The plaintiff was a resident of Sabine County.
The receivers filed in due time a plea of privilege, alleging that the cause of action was triable in Harris County, Texas, where the principal office of the company was situated, and could not be maintained in Sabine County, where neither of the defendants resided.
The court sustained a demurrer to this plea and defendants excepted.
The question certified for our determination is: "Did the trial court err in overruling the plea of the defendant receivers?"
The laws of 1901 contain the following provision:
"That all suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in the State of Texas, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury, etc." (Laws 1901, p. 31.)
Since the Kirby Lumber Company was not a railway corporation in a strict sense, if this suit was against the company alone, it would be difficult to hold that it applied to such a case; though it might be plausibly argued, that by railway corporation was meant any railroad that was operated by virtue of corporate powers. But the succeeding words, "against any assignee, trustee or receiver operating any railway in the State of Texas," bring the present case literally within the terms of the statute. The defendants, the receivers, were operating a railway in the State of Texas. In Cunningham v. Neal,
The plaintiff had a right to sue in Sabine County both because he lived in that county and the injury was inflicted there. We answer that the trial court did not err in overruling the plea of the defendant receivers. *155