Brazos River Transmission Elec. Co-op. v. Vilbig
| Decision Date | 30 November 1951 |
| Docket Number | No. 14455,14455 |
| Citation | 244 S.W.2d 266 |
| Parties | BRAZOS RIVER TRANSMISSION ELECTRIC COOPERATIVE, Inc. v. VILBIG. |
| Court | Texas Court of Appeals |
Smith & Segrest, Waco, for appellant.
Wm. Andress, Jr., Dallas, for appellee.
This is an appeal from an order of a District Court of Dallas County overruling defendant's (appellant) plea of privilege to be sued in McLennan County, Texas. Plaintiff (appellee) instituted the suit for damages against the defendant occasioned by the defendant's constructing and maintaining an electric transmission line on and across his land located in Tarrant County, Texas; and, to acquire venue of the suit, he alleged that he resided in Dallas County and that the defendant is a private corporation, incorporated under the laws of the State of Texas, and has an agent and representative in Dallas County and maintains an office in the City of Garland, Dallas County; that the corporation, under contract with the City of Garland, supplies electric power and energy to said City, and in connection therewith its agent represents the corporation in furtherance of its corporate affairs. Hence under subd. 23, art. 1995, Vernon's Ann.Civ.St., venue of the cause lies in Dallas County.
The only evidence introduced on the issue of venue was addressed exclusively to whether the defendant had such an 'agent or representative' in Dallas County at the time the suit was brought, as reasonably contemplated by the subdivision of the venue statute. It is admitted, only for purpose of this proceeding, that plaintiff has a bona fide cause of action against the defendant on the merits of the suit; and it may well be stated that if the evidence raises the issue that the defendant had, in fact, such an agent or representative as contemplated by the venue statute, the judgment of the trial court should be affirmed; otherwise reversed and the venue changed to the District Court of McLennan County.
Exceptions to the venue statute are for the benefit of the plaintiff and must be strictly construed and clearly established before a person can be deprived of his right under the statute to be sued in the county of his residence; and no strained construction should be indulged to deprive anyone of such right. Subdivision 23, of the venue statute, upon which plaintiff relies to maintain the suit in Dallas County, provides: 'Corporations and Associations.-Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; * * * or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; * * *.'
'The law never presumes agency.' 2 Tex.Jur., p. 500, sec. 103. To the same effect is 3 C.J.S., Agency, § 315, p. 252. Thus it is always a fact to be established, and the burden of establishing that fact is always upon the plaintiff to maintain venue of the suit out of the county of defendant's residence; or, in the case of a corporation, out of the county in which its principal office is situated. The term 'agency or representative' as employed in subdivision 23, is used interchangeably. Each relates to commercial or business transactions, something to do with the corporate affairs of the principal other than matters of manual or mechanical execution. The term connotes some discretionary power conferred upon such employee. The essential distinction between agency or representative, and a mere employee or servant, as contemplated by the subdivision of the venue statute, is that the agent or representative is engaged by his principal to perform a contractual relationship with discretion binding on his principal and third party; whilst an employee or servant has no such power. While each of such employees, in a measure, has something to do with the affairs of his principal, there is an essential difference in their authority and in their relationship to their employer. 'If one is employed to perform personal service for another and his physical movements in the performance of such service are subject to the other's control, he is a servant, while if he is employed to represent another in contractual negotiations or similar transactions, he is an agent.' 2 C.J.S., Agency, § 2, p. 1029. See Mangum v. Lane City Rice Milling Co., Tex.Civ.App., 95 S.W. 605; Talley et al. v. Shasta Oil Co., Tex.Civ.App., 146 S.W.2d 802; Texas Power & Light Co. v. Adamson, Tex.Civ.App., 203 S.W.2d 275, 276.
In the last above cited case, the plaintiff Adamson predicated his controverting affidavit for maintenance of his...
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...come within the term agency or representative, there must be some discretionary power conferred on the entity. Brazos River Transmission Elec. Coop. v. Vilbig, 244 S.W.2d 266, 268 (Tex.Civ.App.--Dallas 1951, no writ). The agency or representative must be an entity authorized to bring about ......
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...than matters of manual or mechanical execution. The term connotes some discretionary power...." (quoting Brazos River Transmission Elec. Cooperative v. Vilbig, 244 S.W.2d 266, 268 (Tex.Civ.App.--Dallas 1951, no writ)); Clarence Guittard and John Tyler, Revision of the Texas Venue Statute: A......
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