H. Rouw Co. v. Railway Exp. Agency
| Decision Date | 10 July 1941 |
| Docket Number | No. 4108.,4108. |
| Citation | 154 S.W.2d 143 |
| Parties | H. ROUW CO. v. RAILWAY EXP. AGENCY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.
Action by the H. Rouw Company against the Railway Express Agency for damages to a shipment of strawberries. From a judgment for the defendant, plaintiff appeals.
Reversed and remanded.
Hardin & Hardin, of Edinburg (Brown & Criss, and Paul H. Brown, both of Harlingen, of counsel), for appellant.
Montgomery & Taylor, Smith & Hall, and Kelley & Looney, all of Edinburg, for appellee.
This is an appeal from a final judgment of the 92nd District Court of Hidalgo County dismissing plaintiff's suit. The statement of the nature and result of the suit made by the plaintiff, H. Rouw Company, is conceded to be substantially correct by defendant, Railway Express Agency, and we will paraphrase from that statement.
The suit was brought by the plaintiff against the defendant for damages alleged to have been sustained to a shipment of seven cars of strawberries. The action is one of tort upon a transitory cause, and based upon general allegations of negligence. The shipments were all made in interstate commerce. Three of the cars originated in Arkansas and were destined for New York; three originated in Arkansas, one of which was destined to Minnesota, one to Pennsylvania, and one to Ohio; the seventh originated in Missouri and went to Pennsylvania. None of the seven cars moved through any of the territorial limits of this State.
The plaintiff is an Arkansas corporation and the defendant a Delaware corporation. Both had permits to do business in Texas under Article 1529, R.C.S.1925.
The damage claimed by the plaintiff is alleged to have been sustained in 1938 and prior to the time it obtained its permit to do business in Texas. The plaintiff has its main Texas office in Edinburg, Hidalgo County; the defendant maintained a number of agencies in that County.
The defendant answered with a pleading which it denominated a plea to the jurisdiction, based upon two grounds not necessary here to state. It also filed what it called a supplemental plea to the jurisdiction and motion to dismiss the case, based upon the grounds that it would be contrary to the public policy of the State for the court to take jurisdiction of a cause of action which the court in its discretion should refuse to exercise because (a) of the expense to be incurred by the State and county; (b) the inconvenience to the State; and (c) the financial burden entailed to the defendant to try the case in Texas rather than in Arkansas.
Upon a hearing and trial before the court both the plea to the jurisdiction and the supplemental plea and motion to dismiss were sustained and the case dismissed. To this action of the court the plaintiff duly excepted and perfected this appeal.
Plaintiff has two assignments of error. The first is: "The trial court erred in sustaining defendant's second amended plea to the jurisdiction filed September 3rd, 1940, and the supplemental plea to the jurisdiction and motion to dismiss filed September 7, 1940, because the jurisdiction of the trial court having been properly invoked over the defendant by the plaintiff under the Statutes of Texas in a transitory cause of action cannot be refused in the discretion of the trial court, or because it violates the Constitution or Acts of Congress."
We deem it unnecessary to discuss the matter of jurisdiction because we think it apparent from the statutes the court had jurisdiction. As we understand it, the defendant admits the court had potential jurisdiction over its person and that the venue was properly laid in Hidalgo County, but seeks to sustain the action of the court because, under the peculiar facts involved in the case, it is entirely within the discretion of the trial court as to whether or not, having obtained jurisdiction, it would exercise the same and try the cause or dismiss it. We will therefore confine our consideration to this proposition.
Of course, it follows from what has been said and admitted, as we take it, that the trial court was in error in holding it had no jurisdiction. The defendant, however, insists the assignment is too general to be considered and constitutes no basis for a reversal; that it is duplicitous because it complains of the action of the trial court on two separate and distinct motions and, therefore, may not be considered by this court. Each of the pleadings of the defendant sought the same end; to-wit, the dismissal of plaintiff's suit. That the court did. He sustained the pleas to the jurisdiction and motion to dismiss. That action merged into the one judgment that resulted in the dismissal of the suit. After all, the dismissal of the suit constitutes the ground of complaint. The assignment is general, but we think taken in connection with the second proposition thereunder it is sufficient. The policy and inclination of this court is toward leniency and to avoid the disposition of a case on technical considerations. The second proposition is:
"A Texas District Court does not have the discretion to refuse to hear a transitory cause of action between two foreign corporations, each having a permit to do business in Texas, each having an agent and office within the court's territorial limits, and where the court's jurisdiction has been properly invoked by personal service upon the defendant's agent in Texas, upon the grounds that the public policy of the State of Texas is to refuse adjudication because of expense and/or inconvenience to the State, or financial burden to the defendant."
It meets the requirement of the statute, Article 1844, Vernon's Statutes, 1925. Miller v. Fenner et al., Tex.Civ.App., 89 S.W. 2d 506. This, we think, disposes likewise of the complaint that the assignment is duplicitous and multifarious.
We deem it unnecessary to discuss the second assignment because of the view we take of this case and the disposition of...
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