
    CHICAGO, R. I. & G. RY. CO. et al. v. TROUT.
    (No. 2-2545.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Appeal and Error <§=£>1042(5), 1043(7) — Harmless Error — Refusal to Strike Amendment Not Submitted — Continuance.
    Where issue presented by plaintiff s trial amendment was not submitted in charge, trial court’s refusal to strike amendment, and. its denial of defendants’ application for continuance on ground of surprise, were not reversible error.
    2. Master and Servant <^£>277 — Existence . of Relation — Partnership Between Bail-roads — Sufficiency of Evidence.
    In employe’s action for injuries, brought against several railroad companies as partners in operation of line where injury occurred, evidence held insufficient to show existence of relationship of partners between two of the railroads.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by H. P. Trout against the Chicago, Bock Island & Gulf Railway Company and others. From judgment for plaintiff, defendants appealed to the Court of Civil Appeals, which affirmed (152 S. W. 1137), and defendants bring error.
    Judgments of the Court of Civil Appeals and of the trial court reversed, and cause remanded for now trial on recommendation of the Commission of Appeals.
    Defendant in error brought this suit to recover damages against the Chicago, Bock Island & Gulf Bailway Company and the Chicago, Bock Island & El Paso Railway Company as partners on account of an injury sustained by defendant on May 6, 19-10, on a freight train on a line of railway froth Tucumcari, N. M., to Amarillo, Tex.; the injury occurring in the territory of New Mexico. Plaintiffs in error answered by general denial, special plea denying partnership, and other pleas not necessary to the disposition of the cause. On a jury trial, verdict was returned in favor of the defendant in error against the plaintiffs in error on the 27th day of January, 1912. Suit was filed July 29, 1910, and on January 24, 1912, defendant in error filed trial amendment alleging that he was employed by the Gulf Company and sent to work on the line in New Mexico where he received the injury. Plaintiffs in error moved to strike out the trial amendment, which being overruled, they presented motion for continuance on ground of surprise. The judgment of the lower court was affirmed by the Court of Civil Appeals of the Seventh District (152 S. W. 1137), and reference is had to that opinion for statement of the case. On the trial the proof showed that in the spring of 1910 a railway was being constructed from Amarillo to the Texas line, and from Tucumcari, in the territory of New Mexico, to the Texas line to connect with the road being constructed from Amarillo, Tex.; that portion of the road in Texas being constructed for the Gulf Company, and that portion in the territory of New Mexico for the Tucumcari & Memphis Railway Company. An engineer had in charge the construction of the road; that portion in New Mexico being constructed under the direction of the Tucumcari & Memphis Company, and that portion in Texas under the Gulf Company. The engineer in charge employed and discharged the laborers, and they were paid for their labor by the respective companies for the work done- for each. The Tucumcari & Memphis Railway Company was chartered under the laws of the territory of New Mexico to build, maintain, and operate a line of railway from Tucumcari to the Texas border. At the date of the alleged injury, the road had been completed so far as rail connection was concerned, but had not yet been opened for passenger and freight service and was still under the direction of the engineer in charge of construction.
    Plaintiff was employed by Jake Pancost, who was working under the engineer in charge of construction, and at the time of his employment nothing was said as to what railroad company was his employer. At the time of his injury, he was on a construction train on that part of the road being constructed by the Tucumcari & Memphis Railway Company. He was paid for his labor by said last-named company. The El Paso 'Company did not take charge of the operation of trains on the road until the 8th or 9th of May, 1910. In the latter part of that year, the plaintiffs in error were advertised in a folder issued by a railway advertising company as a part of the “Bock Island lines” and “Bock Island System,” and the road from Amarillo to Tucumcari was shown as a part of said system. At that time that portion of the road from the Texas line to Tucumcari was marked as the El Paso Company line. However, when this folder was issued does not appear. Yet the testimony shows that the El Paso Company was not operating the roád in New Mexico at the time of the injury.
    The court in its charge authorized a recovery only in the event the jury found plaintiffs in error to be partners and that defendant in error was employed by them.
    The court did not submit the issue presented in the trial amendment.
    N. H. Lassiter and Bobt. Harrison, both of Ft. Worth, and Gustavus & Jackson, of Amarillo, for plaintiffs in error.
    Barrett & Jones and J. N. Browning, all of Amarillo, for defendant in error.'
   SADLER, J.

(after stating the facts as above). The first assignment of error complains of the action of the court in refusing to strike out the trial amendment and 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.

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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