General Motors Corp. v. Brady

• Decision Date: 03 February 1972
• Docket Number: No. 602,602
• Parties: GENERAL MOTORS CORPORATION, Appellant, v. Mary Margaret BRADY et al., Appellees.
• Court: Texas Court of Appeals

Page 385

477 S.W.2d 385

GENERAL MOTORS CORPORATION, Appellant, v. Mary Margaret BRADY et al., Appellees.

No. 602.

Court of Civil Appeals of Texas Tyler.

Feb. 3, 1972.

Fairchild, Hunt & Price, John L. Price, Center, for appellant.

Bert Creel, Tyler, for appellees.

McKAY, Justice.

This is a venue case. The trial court overruled appellant's plea of privilege to be sued in Dallas County, the place of its residence in Texas, and thus this appeal. Appellant predicates its appeal upon fourteen points which complain of the sufficiency of the evidence to sustain the trial court's finding that venue was sustainable in Cherokee County. More specifically he complains of the sufficiency of the evidence to sustain the trial court's implied findings that venue was sustainable under subdivisions 5, 9a, 27, 29a, of Article 1995, Vernon's Ann.Tex.Civ.St. After reviewing the record and the arguments, we have concluded that the judgment of the trial court should be reversed for the reasons hereinafter stated.

The suit was instituted by appellees to recover damages to property and for personal injuries from appellant, General Motors Corporation, and from G & H Motors, Inc. The record reflects that in April, 1969, appellee, Mary Margaret Brady and her husband, received a letter from appellant, General Motors Corporation, informing them of a 'replacement campaign' of the 'flexible front brake hoses' that had been originally installed on their 1966 model Pontiac. The form letter was apparently machine addressed to Ed H. Brady, Jr. but its salutation was addressed, 'Dear Pontiac Owner.' The body of the letter contained the following information: that it had been determined that the flexible front brake hoses originally installed on appellees' model car, after extensive usage under certain conditions, fatigued, which could lead to brake failure; that to prevent this possibility these hoses should be replaced; it directed Pontiac owner to take his car to his nearest Dealer where the aforementioned hoses would be replaced at no cost to the owner. The record shows that on May 26, 1969, in response to the letter, appellees' car was taken to G & H Motors where the replacement work took place, and, that on May 27, 1969, appellee, while turning into her driveway, experienced a brake failure on her automobile which caused the car to collide with the back of her garage, causing property damage and personal injuries. L. H. Holcomb, President of G & H Motors, testified by deposition. Questioned as to the cause of the brake failure, Holcomb testified the failure of the brakes resulted from a loss of brake fluid, caused by the failure of the mechanic making the replacement on appellees' automobile to properly tighten the connection on the brake hoses.

It is appellees' contention, among others, that this is a suit upon a contract and that therefore subdivision 5 of Article 1995, V.A.T.S., should be sustained as the applicable exception to the 'exclusive venue rule' and thereby holding venue in Cherokee County. In order to sustain any exception to the exclusive venue rule, it is necessary for the party relying upon such exception to set out in its controverting plea and then to prove, upon a hearing, certain venue facts. The necessary venue facts which must be alleged and shown by sufficient evidence in order to sustain venue under subdivision 5 are as follows: (1) that the defendant is a party reached by the statute; (2) that the claim is based on a written contract; (3) that the contract was entered into by the defendant or by one authorized to bind him, or was assumed or ratified by him; (4) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. McDonald, Texas Civil Practice, section 4.11.1; Vaquero Drilling Co. v. Adcock, 453 S.W.2d 908 (Tex.Civ.App., San Antonio, 1970, no writ history). Assuming, arguendo, but not reaching the question, that this is in fact a suit upon a contract, we hold the evidence is insufficient to support the implied finding that the alleged contract by its terms provides for the performance of the obligation sued upon in Cherokee County. In determining whether the contract by its terms provides for the performance of the obligation sued upon in the county of suit, '* * * the material and controlling fact being that the particular obligation sought to be enforced by the suit is Required by the contract to be performed in a particular county.' (Emphasis ours). A & S Steel Buildings, Inc. v. Burk, 390 S.W.2d 401 (Tex.Civ.App., Amarillo, 1965, n.w.h.); Barker v. Lone Star Brewing Co., 350 S.W.2d 44 (Tex.Civ.App., 1961, n.w.h.). The obligation allegedly sued on here is one to replace the flexible front brake hoses and more specifically, the corresponding duty to perform such replacement with care, skill, reasonable expedience and faithfulness. It is to be noted from the above discussion on the contents of the purported letter contract that the only designation contained therein was 'your nearest Pontiac dealer.' This designation is not of a 'place certain,' so as to allow extrinsic evidence as to the place of performance but rather a designation for convenience of the car owner. Furthermore, the letter clearly does not, on its face, require performance in a county certain, nor does the designation of Ed H. Brady as promisee of the purported letter contract together with his address fix venue in Cherokee County. Johnston v. Personius,242 S.W.2d 471 (Tex.Civ.App., San Antonio, 1951, n.w.h.). Moreover, venue under subdivision 5 may not be fixed by implication. Johnston v. Personius, Supra.

Appellee also contends that subdivision 9a of Article 1995, V.A.T.S., is here applicable as an exception to the exclusive venue rule. In order to sustain venue under subdivision 9a, the following venue facts must be alleged and proven by sufficient evidence, to-wit: (1) that an act or omission of negligence occurred in the county where suit was filed, (2) that such act or omission was that of the defendant in person, or that of his servant, agent or representative acting within the scope of his employment, (3) that such negligence was a proximate cause of plaintiff's injuries. McDonald, Texas Civil Practice, Section 4.17.2; Frick v. Duge, 413 S .W.2d 750 (Tex.Civ.App., Corpus Christi, 1967, n.w.h.). It is undisputed that an employee of G & H Motors, acting within the scope of his employment, was negligent in failing to properly tighten the brake hose connections, and that this negligence was the proximate cause of the brake failure, which gives rise to appellees' claim. The question therefore is whether such act or omission was that of the defendant (General Motors Corporation) in person, or that of its servant, agent or representative acting within the scope of his employment. We think the evidence is insufficient to support a finding of such a relationship. In order to determine whether in fact G & H Motors was the servant, agent or representative of appellant, General Motors, the legal relationship between the parties must be shown in the record, and where the record, as in this case, fails to disclose this legal relationship, or, where the terms of employment are indefinite, actual exercise of control becomes an...