Duffy v. Crown Central Petroleum Corp.

Decision Date17 April 1963
Docket NumberNo. 11069,11069
Citation366 S.W.2d 956
PartiesMerle Hart DUFFY, B. Pete Jackson and R. L. Foree, Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees.
CourtTexas Court of Appeals

James N. Ludlum, John Davenport, Austin, for appellants.

Vinson, Elkins, Weems & Searls, Raybourne Thompson, W. H. Drushel, Jr., Houston; Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin; Cable & McDaniel, Baltimore, Md., of counsel, for appellees.

PHILLIPS, Justice.

This is an appeal from an order granting a plea of privilege of the appellees Crown Central Petroleum Corporation et al., in a suit brought by appellants Merle Hart Duffy, et al.

In July, 1962, the Attorney General of Texas brought suit under Section 11e of Article 6049a, Vernon's Ann.Civ.St., to compel appellees to comply with an order of the Railroad Commission of Texas which required appellees to connect, by pipeline, the tank batteries of B. A. Duffy in the Haskell County Regular Field, Haskell County, Texas. Section 11e of Article 6049a reads as follows:

'The Railroad Commission shall, upon information that discrimination is practiced in its purchases by any common purchaser, request the Attorney General to bring a mandatory injunction suit against said common purchaser to compel such reasonable extensions as are necessary to prevent discrimination.'

On September 21, 1962, appellants intervened in the State's suit and asked not only for a mandatory injunction under Section 11e of Article 6049a, but also for one-half of the penalties provided for in Section 11 of Article 6049a (not less than $100 or more than $1000 for each day the discrimination existed). In addition, appellants brought an action for $47,850 actual damages under Section 11c of Article 6049a which reads as follows:

'When any person, persons, association or corporation is discriminated against by a common purchaser as defined herein in favor of the production of said common purchaser, a cause of action for damages, when such has occurred, shall lie against said common purchaser and said person, persons, association or corporation may bring suit for same in any court of competent jurisdiction in the county in which the damage occurred.'

On September 24, 1962, the Attorney General filed his First Amended Original Petition and, for the first time, sought penalties as well as a mandatory injunction. The Attorney General asked that one-half of such penalties be recovered by the State and the other one-half of such penalties be awarded for the use and benefit of the holders and owners of the producing lands and mineral interests involved.

Appellees filed a plea of privilege to appellants' claim for damages. The Trial Court sustained appellees' plea of privilege as to appellants' claim against appellees for actual damages for discrimination and ordered the suit to be transferred to Harris County.

Appellants contend that the venue for their action for damages under 11c of Article 6049a is in Travis County or in the alternative, that this suit for damages be transferred to Haskell County and not Harris County.

Appellants contend that the cause of action instituted by the Attorney General under the provisions of Article 6049a set out above was instituted in Travis County pursuant to that provision of said article that makes venue in Travis County mandatory; that the appellants intervened in this lawsuit wherein the State was suing for penalties in their behalf. That the main issue of the lawsuit was that of discrimination; that the damage issue in the suit brought by the appellants was permissive; that the damage portion of the lawsuit was properly brought in Travis County in order to avoid a multiplicity of suits. In behalf of the point on multiplicity of suits, the appellants contend that par. (a), Rule 40, Texas Rules of Civil Procedure as authority for this contention. The portion of the rule relied on reads as follows:

'All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action * * * a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.'

The appellees defend on the theories that the appellants could have brought their damage suit for discrimination in Haskell County, Texas, the county in which the damage was alleged to have occurred, Sec. 11c, Article 6049a; that they failed to do this and inasmuch as venue for the damage portion of the suit does not lie in Travis County, the court correctly transferred the case to Harris County, the home county of the defendants under the venue statute requiring that a defendant sued in the county of his residence, Article 1995, V.A.C.S. In their contention that venue for appellants' damage suit for discrimination does not lie in Travis County, appellees argue that appellants do not have a cause of action under the penalty section of Article 6049a but have only a cause of action under Section 11c of Article 6049a. Thus the present suit is one with two plaintiffs, each with a separate cause of action trying to join their separate causes in a single suit against appellees. That the appellants are attempting to use the State's penalty action as a prop for their private damage suit, which...

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5 cases
  • Foree v. Crown Central Petroleum Corp., B--460
    • United States
    • Texas Supreme Court
    • June 19, 1968
    ...the plea and ordered that phase of the suit transferred to Harris County. The court of civil appeals affirmed. Duffy v. Crown Central Petroleum Corp., 366 S.W.2d 956 (Tex.Civ.App.--Austin 1963, no Respondents filed a motion for summary judgment with respect to the phase of the suit in the 5......
  • State v. Crown Central Petroleum Corporation
    • United States
    • Texas Court of Appeals
    • June 26, 1963
    ...6049a, Section 11 and Section 11e, as this Court recently stated in its Opinion on the venue facet of this case. Duffy v. Crown Central Petroleum Corporation, 366 S.W.2d 956 (Aus.Civ.App., 1963, no writ "Here we have a claim for alleged discrimination under Section 11e, Article 6049a for pe......
  • Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca
    • United States
    • Texas Court of Appeals
    • September 11, 1969
    ...pleas of privilege by the trial court in a separate preliminary appeal, but they failed to take such action. See Duffy v. Crown Central Petroleum Corporation, 366 S.W.2d 956 (Tex.Civ.App., Austin 1963, mand.overr.). We are, therefore, here concerned with appellants' point one as it relates ......
  • State v. Crown Central Petroleum Corp.
    • United States
    • Texas Court of Appeals
    • June 26, 1963
    ...cause of action, which was granted by the Trial Court and sustained by this Court on April 17, 1963 in Duffy, et al. v. Crown Petroleum Corporation, et al., Tex.Civ.App., 366 S.W.2d 956. On October 9, 1962 appellees filed their Motion for Summary Judgment, urging that as a matter of law tha......
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