This suit was brought in the District Court of Parker County, Texas, by the plaintiffs in error against the Texas Pacific Railway Company, a corporation chartered by virtue of an Act of the Congress of the United States, and J.M. Tucker, its agent, a resident of the State of Texas, to recover damages alleged to have resulted from the shipment of cattle from Strawn, Texas, a station on the line of the defendant company, destined to Tulsa, Indian Territory, a station on the line of the St. Louis San Francisco Railway Company. It was alleged in the petition that the cattle were brought to Strawn and were delivered to Tucker, as the agent of the defendant company, to be shipped by the shortest and most expeditious route to the point named; that after the cattle had been about loaded on the cars, Tucker then presented a bill of lading for the transportation of the cattle to Paris, Texas, and thence over the lines of the St. Louis San Francisco Railway Company to Monette, Missouri, and thence to Tulsa. It was alleged that the plaintiffs declined to sign the bill of lading and demanded that the cattle should be carried over the Texas Pacific Railroad to Fort Worth, or to Sherman and thence over the Red River, Texas Southern Railroad to its connection with the St. Louis San Francisco Railroad, and thence by that railroad to the point of destination, *Page 658 and that this was the shortest and most expeditious route; but that Tucker, the agent, positively refused to do this, and that under certain circumstances alleged they were compelled to sign as demanded. The circumstances alleged were sufficient in our opinion to show, that in signing the bill of lading the plaintiffs acted under duress. It was further averred, in substance, that by reason of the longer haul, the cattle were damaged and for this damage the suit was brought.
In due time defendant, the Texas Pacific Railway Company, filed a petition for the removal of the cause to the Circuit Court of the United States. In this petition its codefendants joined. The defendant company in the first place claimed the right of removal by virture of its incorporation under an Act of the Congress of the United States and, according to the decisions of the Supreme Court of the United States, would clearly have had that right, had it been the sole defendant. It was also alleged in the petition for removal, that the defendant, Tucker, was fraudulently joined as a defendant for the purpose of preventing a removal to the United States Court. Since in our opinion the decision of the case in this court depends upon the question of a fraudulent joinder, we copy the allegations in the petition for removal in reference to that matter as follows: "This petitioner says that plaintiffs aver that J.M. Tucker, in shipping the cattle, acted for and was the agent of the Texas Pacific Railway Company. This petitioner says that the said Tucker was its local station agent and acted for it as agent, and not in any other capacity, and was not and is not a proper party to this suit. The plaintiffs do not, in their petition, state any cause of action against him. They improperly and wrongfully joined him with this petitioner in this case for the sole and only purpose of preventing this petitioner, the Texas Pacific Railway Company, from removing this case to the United States Circuit Court, which said joinder of said J.M. Tucker was done fraudulently for the purpose of preventing said removal and is a fraud on the jurisdiction of the United States Circuit Court for the Northern District of Texas. That this suit against this defendant, the Texas Pacific Railway Company, is a suit arising under the laws of the United States, and more especially under the laws of the United States, constituting the charter of this defendant, and under which it was incorporated, that is to say, the said Act of Congress of the United States, approved March 3, 1871, entitled `An Act to incorporate the Texas Pacific Railway Company, and to aid in the construction of its road, and for other purposes,' and Acts amendatory thereof and supplemental thereto, approved respectively on May 2, 1872, March 3, 1873, and June 22, 1874."
We think it clear, that the joinder of a party in a suit of this character, against whom no cause of action is alleged, presents no obstacle to a removal, by a codefendant, who, if sued alone, would be entitled to remove the case. But as we understand the rulings of the Supreme Court of the United States, where a cause of action is stated against a defendant who is claimed to be made a party in order to defeat a removal, the petition must allege the facts which show the fraudulent purpose. For example if in this case the petition had alleged that the allegation in plaintiffs' petition, that Tucker was the agent of the defendant *Page 659 company in shipping the cattle, was not true and was fraudulently inserted in order to prevent a removal of the cause, it would have carried the case to the United States Court, where, upon a denial of the fraud by the plaintiffs and a motion to remand, the issue would have been tried and determined. (Louisville, etc., R.R. Co. v. Wangelin, 132 U.S. 599; Chesapeake Ry. Co. v. Dixon,179 U.S. 131.) But the petition for removal in this case contains no allegation of any fact whatever from which the conclusion can be reached that defendant Tucker was fraudulently joined as a defendant. The statement of a conclusion of law is not sufficient. Therefore if the petition of the plaintiffs states a case which shows a cause of action against the defendant Tucker, which case could be properly joined with the action against the defendant company, the petition for removal was not sufficient to deprive the State Court of its jurisdiction. It seems to us therefore the questions to be determined are: Does the plaintiffs' petition state a cause of action against defendant Tucker? and was the plaintiff entitled to sue both defendants in the same suit? The first is the important question in the case here presented.
Where the agent is empowered to perform a duty for his principal and neglects to perform it, and damage accrues from the failure, the agent is not responsible, though the principal may be. (Labadie v. Hawley, 61 Tex. 177.) But where the agent acting for his principal does a wrongful act and damages result to a third person, both are responsible. (Baker v. Wasson,53 Tex. 150.)
That there was a liability in the case made by the plaintiffs' petition, we have no doubt. The wrongful act was done by Tucker, the agent, and for his act not only was he liable but his principal was liable because it was done in the prosecution of the company's business. They were joint tort feasors, and were suable separately or jointly at the election of the plaintiff.
That defendant Tucker could not give the United States Circuit Court jurisdiction of the case by joining in the petition of its codefendant we have this day decided in the case of the Texas Pacific Railway Company against Huber.
The Court of Civil Appeals, as they had the right to do, in the exercise of a sound discretion, when they reached the conclusion that the jurisdiction had been taken away, declined to pass upon the merits of the appeal. Until they have acted upon the other assignments of error in that court, we can not determine the case. (Oriental Investment Co. v. Barclay, 93 Tex. 425.) Therefore the judgment of the Court of Civil Appeals will be reversed and the cause remanded to that court for a decision of the other questions presented by the appeal.
Reversed and remanded to Court of Civil Appeals. *Page 660