Dillard v. Smith

• Decision Date: 29 October 1947
• Docket Number: No. A-1294.,A-1294.
• Citation: 205 S.W.2d 366
• Court: Texas Supreme Court
• Parties: DILLARD et al. v. SMITH, Chief Justice, et al.

Page 366

205 S.W.2d 366

DILLARD et al. v. SMITH, Chief Justice, et al.

No. A-1294.

Supreme Court of Texas.

October 29, 1947.

Rehearing Denied November 26, 1947.

Original proceeding by Coy Dillard and wife for a writ of mandamus to compel Edward W. Smith, Chief Justice, and the Associate Justices of the Court of Civil Appeals for the Fourth District, to certify questions of law to the Supreme Court after affirming a district court judgment overruling relators' plea of privilege in an action against them by Thomas J. Rusin for damages sustained in an automobile collision.

Court of Civil Appeals directed to conform its ruling and decision to the Supreme Court's holding.

Scott, Wilson & Cureton and Frank M. Wilson, all of Waco, for petitioner.

D. F. Davis and Tom H. King, both of San Antonio, for respondents.

HART, Justice.

Thomas J. Rusin filed a petition in the district court of Bexar County seeking damages arising out of an automobile collision. The style of the case, as set out in the caption of the petition, is "Thomas J. Rusin v. J. A. and E. D. Transport Co." In the body of the petition, the parties to the suit are named and described as follows:

"Now comes Thomas J. Rusin, a resident of Bexar County, Texas, hereinafter called plaintiff, complaining of Coy Dillard and Edna Dillard, his wife, residents of Edwards County, Texas, operating and doing business under the trade name of J. A. and E. D. Transport Co., hereinafter called defendants, * * *."

There are no further allegations in the petition naming the defendants or describing their manner of conducting business. The prayer of the petition is simply that "defendants" be cited to appear and answer and that plaintiff have judgment against "defendants."

In due time, a plea of privilege was filed in which the style of the case was given as "Thomas J. Rusin v. J. A. and E. D. Transport Company." This plea began as follows:

"Come now the defendants and each of them, including Coy Dillard and Edna Dillard, and file this their pleas of privilege * * *."

No mention was made in the plea of privilege of J. A. and E. D. Transport Company, except in the caption. It was alleged that "each of such defendants" was a resident of Edwards County, Texas.

Upon the hearing of the plea of privilege it was proved by the plaintiff that a truck bearing the name of "J. A. and E. D. Transport Company" ran into the rear of the plaintiff's automobile. No proof was offered to show that the defendants, Coy Dillard and Edna Dillard, were in fact doing business under the name of J. A. and E. D. Transport Company, or that they owned the truck involved in the collision. The district court, upon jury findings of negligence and proximate causation, overruled the plea of privilege. Upon appeal by the defendants, the judgment of the district court was affirmed by the Court of Civil Appeals. J. A. & E. D. Transport Co. v. Rusin, Tex.Civ. App., 202 S.W.2d 693. Appellants in the Court of Civil Appeals then filed a motion for rehearing and a motion to certify questions to this Court. These motions were overruled by the Court of Civil Appeals. 202 S.W.2d 700. Coy Dillard and Edna Dilard within proper time filed their petition in this Court for a writ of mandamus to compel the Court of Civil Appeals to certify questions of law. Rules 462, 465, 475, Texas Rules of Civil Procedure.

The first four questions on which petitioners seek to compel certification relate to the holding of the Court of Civil Appeals that it was not necessary for the plaintiff, in the hearing on the plea of privilege, to prove that Coy Dillard and Edna Dillard operated and did business under the trade name of J. A. and E. D. Transport Company. The effect of the holding of the Court of Civil Appeals is that under Rule 28, Texas Rules of Civil Procedure, J. A. and E. D. Transport Company is a legal entity and is to be considered as a party, separate from the individuals who are alleged to operate it; that such entity can have a residence only where the owners or operators of the business reside; and therefore that "the plea, if valid as to the transport company, must be construed as asserting that the transport company resides in Edwards County, because Coy Dillard and Edna Dillard reside in said county and are the owners thereof." The Court of Civil Appeals concluded that the plaintiff was not required to prove that Coy Dillard and Edna Dillard in fact owned or operated the transport company.

We think that the Court of Civil Appeals erred in this conclusion. In the present case we do not think that "J. A. and E. D. Transport Company" is properly to be considered as an entity apart from the individuals who are named as defendants. There is no allegation that the business is a partnership. As a matter of law, the petitioner Edna Dillard, a married woman, could not be a member of a partnership unless her disabilities of coverture had been removed. Miller v. Marx & Kempner, 65 Tex. 131; Smith v. Bailey, 66 Tex. 553, 1 S.W. 627; Wright v. State, Tex.Civ.App., 71 S.W.2d 352, 353. It is merely alleged in the petition here that Coy Dillard and Edna Dillard operate and do business under the trade name of J. A. and E. D. Transport Company. We think that under the allegations in this case the only defendants are Coy Dillard and Edna Dillard, and that "J. A. and E. D. Transport Company" is merely the name of the business which the defendants are alleged to have been operating.

The scope of Rule 28 is purely procedural. In so far as it applies to persons operating a business under an assumed name, it permits such persons to be made parties under the assumed or common name as well as under their individual names. Under a majority of the opinions of the Courts of Civil Appeals prior to the adoption of this rule, a person could not be sued...