Garrett v. Phillips Petroleum Co., 5934.
| Decision Date | 24 January 1949 |
| Docket Number | No. 5934.,5934. |
| Citation | 218 S.W.2d 238 |
| Parties | GARRETT et al. v. PHILLIPS PETROLEUM CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Suit by Phillips Petroleum Company against T. A. Garrett, Sr., and others to recover balance allegedly due for oil and supplies sold to defendants under a written contract. From a judgment denying defendants' plea of privilege, defendants appeal.
Judgment affirmed.
Arthur Bartelt, of Austin, for appellants.
E. H. Foster and R. S. Sutton, both of Amarillo, for appellee.
Appellee, Phillips Petroleum Company, is a corporation with its division office located at Amarillo in Potter County. Appellants, T. A. Garrett and his sons, are residents of San Saba County and are engaged in the oil and gas retail business at Richland Springs in that county under the trade-name of Garrett Brothers Oil Company. Appellee sold to appellant certain oil, gasoline and greases under a written contract which provided that payments for the products should be made at appellee's division office located at Amarillo in Potter County. Appellee instituted this suit in a district court of Potter County to recover an alleged balance due it upon the contract of $868.57 and appellants filed a plea of privilege in which they sought to remove the venue of the case to the district court of San Saba County. Appellee answered by a controverting plea in which it set up the written contract under which the products were sold to appellants, containing the provision that appellants would pay for the same at its office in Amarillo and invoked the provisions of Subdivision 5 of Article 1995, Vernon's Revised Civil Statutes.
Upon a trial of the issues made by the plea of privilege and the controverting plea, the court denied the plea of appellants to change venue of the suit and they have perfected an appeal to this court.
The single point of error presented by appellants is directed to a conclusion of law contained in the order denying the plea of privilege, namely: "As I construe Subdivision 5 of Article 1995, R.S., it seems to me that the discretion as to where an action coming within its terms may be prosecuted is vested in the plaintiff rather than in the court." Appellants attack this conclusion of law and invoke the doctrine of forum non conveniens under which, in some cases, the courts disregard the strict letter of the law in reference to venue.
Subdivision 5 of Article 1995 provides that, if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein by such writing, suit upon, or by reason of, such obligation may be brought against him either in such county or where the defendant has his domicile. Appellants' contention is that, even though the venue statute gives to the plaintiff the right to bring the suit on such written contract in a county other than the county of the defendant's residence, the doctrine of forum non conveniens is in vogue in this state and it vests in the courts a discretion in the matter of venue. They assert that the account sued upon is comparatively small; that the distance from their home to Amarillo is approximately 500 miles; and that, to defend the suit in Potter County, would entail an expense to them of approximately the full amount involved. They contend therefore that, regardless of the provisions of the statute, the court should have exercised its discretion under the doctrine of forum non conveniens and transferred the case to the district court of San Saba County.
We are not in accord with appellants in this contention. The doctrine of forum non conveniens applies generally to tort actions and suits involving the internal affairs of corporations that are filed in one state against...
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