Beavers v. Darling, 5232
| Citation | 491 S.W.2d 711 |
| Decision Date | 08 February 1973 |
| Docket Number | No. 5232,5232 |
| Parties | Don BEAVERS, Appellant, v. Linda Elaine Nutt DARLING, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Ted Musick, Houston, for appellant.
Brackeen, Pennington & Stallones, Troy Stallones and Warren Y. Pennington, Houston, for appellee.
This is a summary judgment case. The trial court granted a summary judgment in favor of Defendant-Appellee Linda Elaine Nutt Darling, that Plaintiff-Appellant Don Beavers take nothing, from which Plaintiff-Appellant Beavers appeals.
The sole question presented is whether or not Plaintiff-Appellant Beavers failed as a matter of law to exercise due diligence in securing service of citation upon Defendant-Appellee Mrs. Darling. We believe he did not so fail as a matter of law, and that a material fact issue concerning due diligence was presented. We therefore reverse and remand the cause to the trial court.
The suit grew out of an automobile accident which occurred in Houston, Texas, on July 25, 1966. Mr. Ted Musick, an attorney at law, was employed by Plaintiff-Appellant Beavers to represent him in November, 1967. On December 8, 1967, Mr. Musick filed Plaintiff's Original Petition in a District Court of Harris County, Texas, against Defendant-Appellee Mrs. Darling for personal injuries, medical expenses, and property damage. The record shows the first citation was issued December 14, 1967, directed to 'Linda Elaine Nutt, a feme sole,' and returned unserved March 14, 1968, the officer's notation on the return reciting 'service attempted.'
The second citation was issued August 5, 1968, directed to 'Linda Elaine Nutt, a feme sole,' and was returned unserved on November 6, 1968 with the officer's return reciting:
The third citation was issued December 15, 1969 directed to 'Linda Elaine Nutt, a feme sole,' and was returned unserved March 18, 1970, with the officer's return reciting:
The fourth citation was issued March 30, 1970 directed to 'Linda Elaine Nutt, a feme sole,' and was returned unexecuted July 8, 1970, with the officer's return reciting
The fifth citation was issued May 10, 1971, directed to 'Linda Elaine Nutt Darling,' which was duly served on her two days later, on May 12, 1971.
The Defendant filed her Original Answer on May 27, 1971, in which she pleaded among other things, that Plaintiff's cause of action was barred by the two year statute of limitations.
As bearing on the question of Plaintiff's diligence in getting the Defendant served with citation, it is well to point out that at the time of the accident, the Defendant was a minor nineteen years of age and single, her maiden name being 'Linda Elaine Nutt'; that between the time of the accident and the time she was finally served with citation, she had (1.) reached her majority, (2.) married, (and thereby changed her surname to 'Darling') (3.) become divorced, and (4.) had changed her address at least a few times. Changes in a defendant's status such as these may well present problems to the plaintiff in his efforts to locate such defendant for securing service of citation.
Prior to the time the instant suit was brought in the District Court, Defendant-Appellee Linda Elaine Nutt sued Plaintiff-Appellant Don Beavers in a County Court at Law of Harris County, Texas, primarily for her car damage and other damages growing out of the same accident as the District Court suit. On January 22, 1970, Mr. Musick, Beaver's attorney, had Weitten Interrogatories served upon the attorney for Linda Elaine Nutt in which he asked several questions about where she presently lived, where she worked, her position, her marital status, as well as other questions concerning the accident. On February 17, 1970, Miss Nutt's attorney served Mr. Musick with answers in which these questions were answered. It was pursuant to these answers that Mr. Musick caused the fourth citation to be issued which was returned unserved.
Then thereafter, in December 1970, in the County Court suit, Mr. Musick took the oral deposition of Linda Elaine Nutt Darling in which he (Musick) again secured Mrs. Darling's current name, residence address, business address, occupation, and marital status. Since the time of the written interrogatories (about ten months earlier), she had changed her residence address dress but was still working for the same employer as before. On the occasion of this oral deposition, which was taken in Mr. Musick's office, Mr. Musick handed Mrs. Darling a copy of the District Court petition he had filed for Beavers and asked her to turn it over to her lawyer. He told her he had 'issued about twelve services in this case and (had) not been able to find you anywhere.' He asked her to consider this (handing to her of the petition) as a service of the District Court case. After this deposition, it was on May 10, 1971, that the last citation was issued, pursuant to which Mrs. Darling was successfully served on May 12, 1971.
Defendant-Appellee Mrs. Darling moved for a summary judgment (supported by her affidavit) contending in effect that Plaintiff-Appellant Beavers had failed to use diligence as a matter of law in securing service on the Defendant, and that Plaintiff's cause of action was barred by the two year statute of limitation.
Mr. Musick by way of answer to her motion for summary judgment filed his affidavit, some of the statements in which affidavit will be discussed more fully later on in this opinion.
The trial court granted Defendant's Motion for Summary Judgment, decreeing that Plaintiff take nothing.
Plaintiff-Appellant appeals on one point of error, namely, that the trial court erred in holding as a matter of law that Plaintiff had not used due diligence in serving the Defendant with citation. We sustain this contention and reverse and remand the cause to the trial court.
Our Supreme Court has laid down the following rules governing appeals from summary judgments that apply to the case at bar, in Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co. (Tex.Civ.Ct...
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