
    NATION v. SAN ANTONIO SOUTHERN RY. CO. et al.
    (No. 592-4419.)
    
    (Commission of Appeals of Texas, Section B.
    April 28, 1926.)
    I. Carriers <&wkey;>l77(l) — Interstate shipper may recover from each connecting carrier for its own defaults, as well as against initial carrier for entire obligation; state statutes being inapplicable (U. S. Comp. St. §§ 8604a, 8604aa; Vernon’s Ann. Civ. St. Supp. 1922, arts. 731, 732).
    Under U. S. Comp. St. §§ 8604a, 8604aa, governing interstate shipments, to which Vernon’s Ann. Civ. St. Supp. 1922, arts. 731. 732, are inapplicable, shipper may have recourse against each connecting carrier for its own defaults, as well as against initial carrier for entire obligation.
    2. Carriers <&wkey;182 — Connecting carrier in interstate shipment may be sued outside county of its residence in county wherein another connecting carrier, though not sued and causing none of damage, operates its lines (Rev, St. 1911, art. 1830, subd. 25 [now Rev. St. 1925, art. 1995, subd. 24]; U. S. Comp. St. §§ 8604a, 8604aa).
    Under Rev. St. 1911, art. 1830, subd. 25 (now Rev. St. 1925, art. 1995, subd. 24), interstate shipper may sue connecting carrier outside county of its legal residence in county wherein another connecting carrier, participating in transportation, operates its lines, though latter caused none of damage and was not sued, in view of each connecting carrier’s liability for its own defaults as agents of initial carrier under through bill of lading (U. S. Gomp. St. §§ 8604a, 8604aa).
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Pet Nation agáinst the San Antonio Southern Railway Company, in which the Houston & Texas Central Railway Company was impleaded by defendant and filed a plea of privilege. Judgment, sustaining plea and transferring suit to district court of another county was affirmed by the Court of Civil Appeals, which thereafter certified to Supreme Court questions whether trial court erred in sustaining plea, and, if not, whether transfer was made to proper county.
    First question answered in affirmative.
    J. A. Templeton,' of Fort Worth,' for appellant.
    Baker, Botts, Parker & Garwood, of Houston, and Head, Dillard, Smith, Maxey & Head, and Jesse F. Holt, all of Sherman, for appellees.
    
      
       Rehearing denied June 26, 1926.
    
   SHORT, J.

In this case the honorable Court of Civil Appeals of the Second District has certified to the Supreme Court two questions, the certificate being as follows:

“Pet Nation, plaintiff in the trial court, has appealed from an order of the district court sustaining a plea of privilege filed by the Houston & Texas Central Railway Company, one of the defendants in the case, and transferring the suit to the district court of Harris county for trial.
“The suit was to' recover damages resulting from the alleged negligence of the defendants in failing to transport cattle with reasonable dispatch and in failing to provide proper pens and facilities for unloading and feeding them while they were detained at the town of Ikmis.
“The cattle were shipped from Christine, Tex., over the line of the San Antonio Southern Railway to the city of San Antonio; from San Antonio to Houston over the Galveston, Harrisburg & San Antonio , Railway; from Houston to Fort Worth over the Houston & Texas Central Railway; from Port Worth, through Denton county, to a station in the state of'Oklahoma, over the Gulf, Colorado & Santa Eé Railway, and from that station to Bazaar, Kan., over the line of the Atchison, Topeka & Santa Eé Railway, which was1 the terminal carrier.
“Upon the trial Of the plea of privilege, it was agreed between the parties that no damage was sustained by the cattle while on the line Of the Gulf, Colorado & Santa Eé Railway, for which reason that company was not sued. It was further agreed that the cattle were carried' from the point of origin to destination over the lines of the initial carrier and all connecting carriers on a through bill and stock contract, issued by the initial carrier, and accepted and acquiesced in by the several connecting carriers.
“The principal negligence complained of in the petition and made the basis of the recov- ’ ery sought was that of the Houston & Texas Central ítailway at the town of Ennis, which was a station on that line of railway.
“The suit was instituted against the Sam Antonio Southern Railway Company, the initial carrier, in. the county of Denton, state'of Texas.' That company filed an answer alleging that, if any damages occurred to the cattle through negligence of any of the carriers, such negligence was by the Houston & Texas Central Railway alone, and it prayed that that company be made a party defendant, to the end that the initial carrier might have a judgment over against it in the event plaintiff should recover against ,the initial carrier.
“After that answer was- filed, plaintiff by an amended petition sought to recover the damages complained of against both defendants. Neither of those defendants operates or does business or has an agent or representative in the county of Denton, where the suit was filed.
“The Houston & Texas Central Railway Company then filed its plea of privilege to be sued in Harris county, state of Texas, where its principal office was located, and which county was its place of residence. The plea of privilege further negatived all of the statutory exceptions to exclusive venue of suits in the county of one’s residence. The plea of privilege was controverted by both the plaintiff and the initial carrier, but the resistance of each thereto was based upon subdivision 25 of article 1830 of our Revised Statutes, and not upon any denial’ of the facts alleged in the plea. That subdivision! reads as follows:
“ ‘Whenever any passenger, freight, baggage or other property has been transported by two or more railroad companies1, express companies, steamship or steamboat companies, transportation companies, or common carriers of any kind or name whatsoever, or by any assignee, lessee, trustee or receiver thereof, or partly by one or more such companies, or common carriers, and partly by one or more assignees, lessees, trustees or receivers thereof, operating or doing business as such common carriers in this state, or having agents or representatives' in this state, suit for damage, or loss, or for any other cause of action arising out of such carriage, transportation or contract in relation thereto, may be brought against any one or all of. such common carriers', assignees, lessees, trustees or receivers so operating or doing business in this state, or having agents or representatives in this state, in any court of competent jurisdiction, in any county in which either of such common carriers, assignees, lessees, trustees or receivers operates or does business, or has an agent or representative; provided, however, that, if damages be recovered in such suits against more than one defendant not partners in such carriage, transportation or contract, the same shall, on request of either party, be apportioned between the defendants, by the verdict of the jury, or, if no jury is demanded, then by the judgment of the court.’ i
“That subdivision of the statute was enacted in the year 1905 (see Acts 1905, p. 29) as an amendment to the Act of 1899, p. 214, which reads as follows:
“ ‘That whenever any freight, baggage or other property has been transported over two or more railroads operating any part of their roads in this state, and having an agent in this state or operated by any assignee, trustee or receiver of any such railways, suit for loss or damages thereto or other cause of action connected therewith, or arising out of such transportation or contract in relation thereto, may be brought against any one or all of such railroad corporations, assignees, trustees or receiver operating any of such railways in any county in which either of such railroads extend or is operated; provided, however, that if damages b,e recovered against more than one carrier not partners in the shipment or contract they shall be apportioned between the defendants by the verdict of the jury and1 the judgment of the court, or by the judgment alone, should no jury be demanded; provided, this act shall not change venue in any case now pending.’
“In M., K. & T. Ry. Co. v. Bumpas, 85 S. W. 1046, 38 Tex. Civ. App. 410, this court sustained a plea of privilege based upon the same ground as the one in the present suit, and, in discussing the question, Judge Stephens had this to say:
“ ‘It could not have been the purpose of the Legislature to authorize a suit against a carrier not claimed to be liable for any part of the loss sustained, and the language, “Suit * * * may be brought against any one or all of such railroad1 corporations * * * in any county in which either of such railroads extends or is operated,” evidently has reference to such railroad corporations only as are liable or claimed to be liable for damages. Such corporations are the “defendants” mentioned in the proviso of the act among whom damages are to be apportioned. We interpret the law to mean that suit may be brought against any one or all of the connecting carriers claimed to be liable for damages to property carried by them in any county in which the railroad of either of them (that is1, of those claimed to be liable) extends or is operated, and that the situation or operation of the railroad of a company not sued, and not alleged to be in any manner liable for damages', does not affect the venue.’
“In the case of A., T. & S. F. Ry. Co. v. Forbis (Tex. Civ. App.) 79 S. W. 1979, a plea of privilege was sustained for the same reasons as in the Bumpas' Case. To a like effect was the 'decision of the Court of Appeals of the Fourth District in the case of A., T. & S. E. Ry. Co. v. Waddell, 88 S. W. 390, 40 Tex. Civ. App. 110. See, also, the decision of the Supreme Court in the case of T. & P. Ry. Co. v. Lynch, 75 S. W. 486, 97 Tex. 25.
“Upon the authority of those decisions on a former day this court affirmed the judgment of the trial court which sustained the plea of privilege. But those decisions seem to he in conflict with T. & P. Ry. Co. v. Middleton, 65 S. W. 378, 27 Tex. Civ. App. 481, and T. & P. Ry. Co. v. Langbehn (Tex. Civ. App.) 150 S. W. 1188.
“Appellant has filed a motion for rehearing and also to certify the case to your honorable court and the motion to certify has been granted by reason of said conflict in the decisions, and by reason of the further fact that we deem it advisable so to do.
“We respectfully submit to your honors for determination the following questions:
“(li) Did the trial court err in sustaining the plea of privilege?
“(2) If the foregoing question be answered in the negative, then was the transfer properly made to Harris county?”

Subdivision 25 of article 1830 of the Revised Statutes of 1911 is now subdivision 24 of article 1995 of the Revised Statutes of 1925, but except as to a change in the numbering there is no substantial difference. The general rule of venue is: (

That “no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in the following cases.”

There are 29 exceptions to this general rule, one of which is subdivision 24 of article 1995, Revised Statutes 1915, substantially the same as quoted in the certificate, and therefore unnecessary to reproduce in this opinion. In reaching a proper construction of this subdivision of article 1995, it will be helpful to consider the persons, whether natural or artificial, who might be liable to the appellant from the allegations of his amended petition under the law governing the transaction as set forth therein, which law is embodied in sections 8604a and 8604aa, U. S. Comp. St., commonly known as the Cum-mins Amendment, formerly the Carmack Amendment. Under'these sections, this being an interstate shipment, and therefore the statutes of Texas not being applicable (articles 731, 732, Vernon’s Ann. Civ. St. Supp. 1922) which have reference only to intrastate shipments, the initial carrier, to wit, the San Antonio Southern Railway, is liable for all damages sought to be recovered by the appellant, regardless of where the damage occurred. The amended petition is a suit upon a joint undertaking, as well as a suit upon an ■ undertaking of the initial carrier in an interstate shipment for itself. It alleges that this shipment was made on a through bill and stock contract from the point of origin to destination over the lines of the initial carrier and all connecting carriers, which, through bill and stock contract, was accepted and acquiesced in by the several connecting carriers. Among these connecting carriers were the Galveston, Harrisburg & San Antonio Railway, the Houston & Texas Central Railway, and the Gulf, Colorado & Santa' Fé Railway. None of these companies operated a line of railway or had any agent in Denton county, except thq Gulf, Colorado & Santa Fé Railway Company, which the agreed statement of facts shows did not cause any pf the damage to the cattle, for which reason that company was not sued. The appellant does primarily sue the initial carrier; whereupon that carrier impleaded the Houston & Texas Central Railway Company, who thereupon filed its plea of privilege to be sued in Harris county, where its principal ofiice is, and in law where it resides.

In Burd v. San Antonio Southern Railway Co., 261 S. W. 1023, Judge Stayton, speaking for this section of the Commission of Appeals, with reference to this statute, says :

“There is nothing in the federal statute that tends to lessen the liability of the initial carrier that is imposed by it, or to render a join-der of allegations ag'ainst connecting carriers a waiver of that liability; but, on the contrary, the statute saves to the shipper any remedy that he may have under the common law as recognized by the federal courts. It would seem that the shipper should not in all cases be confined either to the initial carrier or to the connecting carriers for his satisfaction. One or more of them may, by the time of execution, become inconvenient of approach, or, indeed,' develop to he unable to respond.”

He then quotes with approval from Atchison, T. & S. F. Ry. Co. v. Word (Tex. Civ. App.) 159 S. W. 375, as follows:

“The act was passed for the benefit' of the shipper. He can sue the initial carrier alone or any one of the connecting carriers, or all jointly, for the damages'” — citing Railway Co. v. Carl, 33 S. Ct. 391, 227 U. S. 639, 57 L. Ed. 683; Railway Co. v. Ray (Tex. Civ. App.) 127 S. W. 281; Railway Co. v. Word (Tex. Civ. App.) 159 S. W. 375; Railway Co. v. Ward (Tex. Civ. App.) 169 S. W. 1035.

Under the federal statute, the connecting carriers are the agdnts of the initial carrier, and a bill of lading is a through contract on the latter’s part. It also measures the liability of the connecting carriers to the shipper, and the shipper may have recourse against each of them for its own defaults, as well as against the initial carrier for the entire Obligation. Burd v. San Antonio Southern Railway Company. The Supreme Court of Texas, in M., K. & T. Ry. Co. of Texas v. Grain Co., 131 S. W. 410, 103 Tex. 542, decided that the initial carrier was liable by this act of Congress for the entire loss. Now, if the initial carrier was liable for the entire loss, and the bill of lading evidenced the contract to transport the cattle from the point of origin to their destination over the lines of the initial carrier and all connecting carriers, a party injured by the failure of .any one of the carriers to perform its obligation under the terms of the contract would have a cause of action against the initial carrier where-ever the damage was done.

In the case of M. K. & T. Railway Co. of Texas, v. Blanks, 125 S. W. 312, 103 Tex. 191, Chief Justice Gaines, ^fter substantially quoting the Act of the 29th Legislature approved March 13, 1905, which is the act under discussion, as applicable to the facts in that case which in every way invoke a similar principle as does the case undetf discussion, uses this language:

“Now, it is to be observed that'the language is not that suit may be brought against all of such common carriers, but is that it may ‘be brought against any one or all of such common carriers.’ Now, ‘any one’ being used in the singular sense, we think there could have been no doubt as to the construction. It follows that a principal object of the statute was to fix the venue of such suits; and we think that it is fixed in such explicit terms that its meaning cannot be mistaken. In other words, the statute says that either company may be sued in any court which has jurisdiction ordinarily over the other company or companies. In case of such plain language we do not feel at liberty to disregard it.”

The facts in the Blanks Case are that Blanks bought a ticket for himself and another for his wife for transportation from San Marcos in Hays county to Eort Worth over the M., K. & T. Railway Company of Texas, and thence on the Eort Worth & Denver City Railway to the state of Colorado. The agent of the .Missouri, Kansas & Texas Rail: way Company of Texas at San Marcos signed the tickets for each road. Upon the Port Worth & Denver City Railway after leaving Port Worth, by reason of a defective roadbed, the car in which they were riding left the track and turned over, and inflicted the injuries for which they sued in Hays county both companies, alleging a partnership between them; and to this suit the Port Worth & Denver City Railway' Company pleaded its privilege of being sued in the county of its residence, and alleged it did not reside in Hays county and had no agent there. It also duly denied partnership. This plea of privilege was, under these facts, overruled by the Court of Civil Appeals, and, upon appeal to the Supreme Court, this ruling was sustained in the language above quoted.

It is contended, however, that the Blanks Case is not applicable to the facts in this case, because the suit was against both the Missouri, Kansas & Texas Railway' operating in Hays county where the suit was filed and against the Port Worth & Denver City Railway not operating in that county, evidently intending to differentiate the Blanks Case from the case at bar by reason of the fact that the trial court in the Blanks Case, without question, -had jurisdiction over the Missouri, Kansas & Texas Railway Company on account of the fact that the Missouri, Kansas & Texas Railway Company operated in that county, and therefore there could be no question of jurisdiction of the case in Hays county with reference to that road. This contention cannot be sustained, for the reason that, under the authority of the cases cited in Burd v. San Antonio Southern Railway Company, the San Antonio Southern Railway Company was by the terms of'its contract liable to be sued in any county where it or its connecting carriers operated and had an agent over which lines of railway the cattle were transported. This is especially true under this subdivision of the statute which provides that suits may be brought for damages, or loss, or for any other cause of action arising out of transportation or contract in relation thereto in any court of competent jurisdiction in any county in which either of such common carriers does business' or has an agent. It is conceded that the Gulf, Colorado & Santa Pé Railway Company, which was a party to this contract, operated its line of railway in Denton county. The fact that the injury for which a recovery is sought was not inflicted by this party to the contract is not a material fact in determining this particular question, which is one of venue purely. The subdivision of the article does not purport to change, regulate, or affect the liability of any of the carriers to the shipper or as between themselves, but affects and prescribes only the venue of suits against carriers. M., K. & T. Ry. Co. of Texas v. Elliott & Dial, 89 S. W. 767, 99 Tex. 286. In the ease last cited it is said, in speaking of the act of 1899, which is in substance the same as the act of 1905, as it affects this question:

“The main purpose of the Legislature in enacting that law was to fix the venue of suits against railroad companies which were engaged in operating any part of their roads' in the state, * * * and also- to authorize the shipper to join in one action all railroads which had participated in the transportation of the freight, whether as partners, joint contractors, or under a contract or separate contracts, limiting the liability of each to its own line.”

It will be seen from this quotation that the statute applies with reference to fixing the venue to any carrier, whether the initial or connecting one, who was a party to the original contract who participated in the transportation of the freight in whatever capacity. There is no question made about the fact apparent in the record that the Gulf, Colorado' & Santa Pé Railroad Company did participate in the transportation of these cattle, and as said by the Supreme Cburt in the Elliott & Dial Case, 89 S. W. 767, 99 Tex. 286, supra, the main purpose of the statute was to fix the; venue of suits against railroad companies ‘ participating in the transportation (italics ours) of freight, etc. So we think that the facts in the Blanks Case and the facts in the case under discussion are of such a similar nature as to make the decision in the Blanks Case decisive of the question involved in this case. 125 S. W. 312, 103 Tex. 191.

We therefore recommend that question No. 1 stated in the cerifícate, to ■ wit, “Did the trial court err in sustaining the plea of privilege,” he answered in the affirmative.

CURETON, C. J.

Opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     