Gillette Motor Trans. Co. v. Wichita Falls & South. R. Co., 14508.

• Decision Date: 09 April 1943
• Docket Number: No. 14508.,14508.
• Citation: 170 S.W.2d 629
• Parties: GILLETTE MOTOR TRANSPORT CO., Inc., v. WICHITA FALLS & SOUTHERN R. CO. et al.
• Court: Texas Court of Appeals

170 S.W.2d 629

GILLETTE MOTOR TRANSPORT CO., Inc., v. WICHITA FALLS & SOUTHERN R. CO. et al.

No. 14508.

Court of Civil Appeals of Texas. Fort Worth.

April 9, 1943.

Rehearing Denied April 30, 1943.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by T. E. Whitfield against Gillette Motor Transport Company and Wichita Falls & Southern Railroad Company for damages sustained when a truck belonging to the Transport Company collided with a train operated by the Railroad Company. From an order purporting to set aside an order overruling a plea of privilege of the Railroad Company in so far as the Transport Company was concerned, to be sued in Eastland County and transferring the cause as between the Railroad Company and the Transport Company to Eastland County, the Transport Company appeals.

Order reversed and cause remanded.

Massingill & Belew and Hill & Paddock, all of Fort Worth, for appellant.

Leslie Humphrey and G. C. McDermett, both of Wichita Falls, and Conner & Conner, of Eastland, for appellees.

McDONALD, Chief Justice.

This is an appeal from an order sustaining a plea of privilege.

T. E. Whitfield sued Gillette Motor Transport Company and Wichita Falls & Southern Railroad Company in the district court of Tarrant County, seeking recovery for damages sustained when a truck belonging to the Transport Company collided with a train operated by the Railroad Company. The collision happened in Eastland County. The residence of the Transport Company is in Dallas County, but it has an agent in Tarrant County. The residence of the Railroad Company is in Wichita County.

The Railroad Company filed its plea of privilege to be sued in Eastland County, or, in the alternative, in Wichita County. Whitfield did not controvert the plea. The Transport Company filed a controverting affidavit, setting up grounds for venue in Tarrant County which need not be discussed in view of our disposition of the appeal.

On July 8, 1942, the trial court sustained the plea of privilege of the Railroad Company as to the cause of action asserted by Whitfield. On the same day the trial court entered another order overruling the plea of privilege of the Railroad Company, to quote from the order, "in so far as the Gillette Motor Transport Company, its action for damages and contribution, are concerned". The Railroad Company excepted and gave notice of appeal, but did not file an appeal bond, nor did it file a transcript or statement of facts in this court.

The case was thereafter set for trial on the merits in the Tarrant County district court on November 16, 1942. On that date the Railroad Company presented an oral motion to the court asking that the last-mentioned order of July 8th be set aside. The trial court on November 16th entered an order undertaking to set aside the previously rendered judgment of July 8th, and to transfer the cause, as between the Railroad Company and the Transport Company, to Eastland County. The Transport Company duly perfected an appeal to this court from the order of November 16th.

No complaint is made on this appeal as to the order of July 8th transferring Whitfield's suit against the Railroad Company to Eastland County.

The cause was set for submission in this court on March 19th. At that time the Transport Company, the appellant, had filed a brief containing a single point of error which did not raise the question which we shall discuss and which will control the disposition which we shall make of the appeal. In the course of the presentation of oral argument upon the submission of the cause, the question arose whether the trial court had authority or jurisdiction to enter the order of November 16th, sustaining the plea of privilege as between the Railroad Company and the Transport Company, after he had entered the order of July 8th, overruling the plea of privilege. Leave was granted to both appellant and appellee to file additional briefs upon the question thus raised.

Appellant has filed a supplemental brief containing two points of error not contained in his original brief, and appellee has also filed an additional brief, in which objection is made to the consideration of either of the two additional points of error.

We are met at the outset of our consideration of the appeal with questions of appellate practice. The first is whether, under our new rules of procedure, the Court of Civil Appeals may reverse a judgment for a fundamental error which appears on the face of the record, but concerning which there is no point of error in the brief. The second is whether the Court of Civil Appeals may, after submission of the cause, allow an amendment of briefs in order to present points of error not presented in the original brief. We shall first discuss the latter question.

Almost fifty years ago the Supreme Court appears to have done substantially what we have done with respect to allowing an amendment of appellant's brief. Texas & Pacific Coal Company v. Lawson, 89 Tex. 394, 32 S.W. 871, 872, 34 S.W. 919. When the cause was submitted to the Supreme Court, it appeared to the court that the contract involved in the suit may have been in violation of the anti-trust laws, whereupon the court entered its order as follows: "As these questions were not discussed in the briefs upon which this cause was submitted, we deem it proper to set aside the submission, and refer the cause back for oral and written arguments, or either, as counsel may desire, upon the questions above stated."

Rule 422 of the Texas Rules of Civil Procedure appears to require only a substantial compliance with the rules for briefing. Rule 429 provides that if it should be apparent during the submission or afterward that the case has not been properly prepared, or properly presented in the briefs, or the law and authorities not properly cited, so as to enable the court to decide the case, it may decline to receive the submission, or it may set the submission aside and make such orders...