Atlas Roofing Co. v. Hall, A-3284

• Decision Date: 09 January 1952
• Docket Number: No. A-3284,A-3284
• Citation: 150 Tex. 611,245 S.W.2d 477
• Parties: ATLAS ROOFING CO. v. HALL Chief Justice, et al.
• Court: Texas Supreme Court

Page 477

245 S.W.2d 477

150 Tex. 611

ATLAS ROOFING CO. v.HALL Chief Justice, et al.

No. A-3284.

Supreme Court of Texas.

Jan. 9, 1952.

Opinion Conformed to Jan. 28, 1952.

See245 S.W.2d 973.

Robert C. Johnson and Piranio & Piranio, Dallas, for petitioner.

Lattimore & Lattimore and Culbertson, Morgan, christopher & Bailey, Fort Worth, W. B. Handley and Storey, Sanders, Sherrill & Armstrong, Dallas, for respondents.

SHARP, Justice.

This is an original mandamus proceeding, brought by relator to compel the Court of Civil Appeals for the Second Supreme Judicial District to certify certain questions of law that arose in a hearing of a plea of privilege, which was controverted, under Subdivision 4 of Article 1995, Vernon's Annotated Civil Statutes.

Aron Schifman and Morris Schaffer, doing business as Atlas Roofing Company, a partnership, hereinafter called relator, filed suit in the 101st District Court of Dallas County against the following defendants: Gaylord Shaw, Burnett Estes, and Elba Hodges Estes, independent executrix of the estate of Barney R. Estes, doing business as Shaw and Estes, a partnership, and American Employers' Insurance Company, a corporation, whose legal residences are in Dallas County, and Charles T. Freelove and Southwestern Baptist Theological Seminary, a corporation, whose legal residences are in Tarrant County.

Relator alleges that it entered into a written contract with defendants Shaw and Estes for the construction of a roof upon a building being erected by Shaw and Estes, as general contractors, for the owner, Southwestern Baptist Theological Seminary, in Fort Worth, said roof to be installed according to the plans, drawings, specifications, and addenda prepared by Charles T. Freelove, an architect, for a consideration of $9500; that relator had substantially performed its contract as agreed, and there was a balance due relator on said contract in the sum of $5900; that defendants refused to permit and prevented relator from proceeding with the work to a completion; that the materials called for in the specifications were unsatisfactory, and it was imposible to install the same in a manner which would be suitable for use on said roof; and that such failure of the material to function was entirely due to errors and defects in the plans, specifications, and contract documents.

Relator sued Shaw and Estes for $5900 damages for breach of said contract; sued American Employers' Insurance Company as surety on the performance bond of Shaw and Estes for said $5900 damages; sued Southwestern Baptist Theological Seminary, as owner of the building being erected, for monies in its hands to the extent of relator's damages; and sued Charles T. Freelove for wilfully and wrongfully inducing Shaw and Estes to breach their said contract with relator.The allegation against Freelove was that he'wrongfully prevented plaintiff from proceeding with the work and wrongfully interfered with the contractual relationship between plaintiff' and the other defendants'by inducing them to prevent plaintiff from proceeding with the work and to refuse to pay plaintiff the balance due it on its said contract.'Relator prayed for a joint and several judgment against all defendants for the same damages.

In response to plaintiff's petition, Charles T. Freelove and Southwestern Baptist Theological Seminary each filed their pleas of privilege to be sued in Tarrant County.Said pleas of privilege were timely controverted by relator, the controverting affidavit realleging the facts contained in the petition and alleging that venue was maintainable in Dallas County under Subdivision 4 of Article 1995.

On November 25, 1950, the pleas of privilege were heard by the court without a jury, the plaintiff offering evidence of the causes of action against the defendants.In support of relator's cause of action against Shaw and Estes, relator's contract with Shaw and Estes was introduced in evidence, along with evidence relating to the breach thereof.It is undisputed that relator proved a cause of action against the resident defendants.After hearing, the trial judge overruled the pleas of privilege.

Southwestern Baptist Theological Seminary did not appeal from or complain of the order of the trial court overruling its plea of privilege.Charles T. Freelove perfected his appeal from the order overruling his plea of privilege to the Court of Civil Appeals, and that court rendered an opinion reversing and rendering the judgment of the trial court as to Freelove, and ordering vanue of the cause of action against Charles T. Freelove changed to Tarrant County.The opinion holds that venue of the cause of action against Freelove could not be maintained in Dallas County under Subdivision 4 of Article 1995, and that the two causes of action were not so closely related as to sustain venue under that provision of the statute.239 S.W.2d 399.

Relator claims in this case that the causes of action against Freelove and the defendants who resided in Dallas County and joined in this suit grew out of the breach of a contract, committed by defendants who resided in Dallas County, and induced by the illegal action of Freelove, who resided in Tarrant County.On May 30, 1951, in conformity with Rule 465,Texas Rules of Civil Procedure, relator filed a motion to certify the questions of law to the Supreme Court, which motion was overruled.

Relator claims that the opinion of the Court of Civil Appeals conflicts with the following opinions of this Court: Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1301;Cobb v. Barber, 92 Tex. 309, 47 S.W. 963;American Surety Co. v. Shaw, Tex.Com.App., 69 S.W.2d 47;andTexas Venetian Blind Co. v. Bond, 146 Tex. 212, 205 S.W.2d 977.

Relator says that this is an appeal from an interlocutory order on a plea of privilege hearing, and under the statutes and Rules of Civil Procedurethe Supreme Court has no jurisdiction of an application for writ of error; that unless the writ of mandamus is issued, the relator will suffer irreparable injury, for which it has no remedy at law, in that it will be deprived of its valuable right to have the merit issues tried in the county wherein two of the defendants reside, as provided by Subdivision 4 of Article 1995; that because of the conflicts stated above the Court of Civil Appeals is under a duty to certify to this Court for decision the questions of law upon which such conflict exists; and that relator has requested the particular questions of law upon which the conflict exists to be certified to this Court for decision, which request was overruled.

The three questions sought to be certified are rather lengthy, but they may be combined and succinctly expressed in one question: Could relator, under the facts alleged and proved in this case, maintain its cause of action in Dallas County under the provisions of Subdivision 4 of Article 1995 against the resident and nonresident defendants?

The answer to this question involves...