Kirby Lumber Co. v. Lloyd , 103 Tex. 153 ( 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 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, 101 Tex. 338, the question whether a railroad operated not publicly but for the private purpose of carrying on a plantation business was a railroad within the meaning of section 1 of the Act approved June 18, 1897, entitled: "An Act to prescribe and define the liability of persons, receivers or corporations operating railroads or street railways, for injuries to their servants and employes and to define who are fellow-servants," was presented and it was held that it was; and that although the railroad was used exclusively in private business, it made no difference, and that it was a railroad operated by a corporation. In the elaborate opinion by Mr. Justice Brown in that case it is pointed out that no difference insofar as the employes were concerned as to the dangers of the service, etc., were recognized and that therefore it was no answer to say that the injury was inflicted by the negligence of a fellow-servant. It this opinion we all concurred. It is to be noted that the language of the statute then considered and of that now being discussed is practically the same; we therefore conclude that the word "railroads" should have the same construction in each Act.

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.