Gulf Oil Corp. v. Smithey

• Decision Date: 01 March 1968
• Docket Number: No. 17068,17068
• Citation: 426 S.W.2d 262
• Parties: GULF OIL CORPORATION, Appellant, v. Lee P. SMITHEY, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 262

426 S.W.2d 262

GULF OIL CORPORATION, Appellant, v. Lee P. SMITHEY, Appellee.

No. 17068.

Court of Civil Appeals of Texas.

Dallas.

March 1, 1968.

Rehearing Denied April 5, 1968.

William F. Erwin, Jr., Houston, for appellant.

Clifford S. Dillard, Dallas, for appellee.

BATEMAN, Justice.

Gulf Oil Corporation appeals from the overruling of its plea of privilege in a suit brought against it by appellee Lee P. Smithey for damages for alleged trespass and conversion of his personal property. The parties will be designated as they were in the trial court.

Vernon's Ann.Civ.St., Art. 1995, in its first clause provides that a defendant is entitled to be sued in the county of his domicile, subject to the exceptions set forth in the several subdivisions of Art. 1995. Appellee relies on two such exceptions, Nos. 9 and 23. When the defendant files a proper plea of privilege, the law places the burden on the plaintiff to allege and prove that the case falls within one or more of those exceptions. Compton v. Elliott, 126 Tex . 232, 88 S.W.2d 91 (1935).

The facts appear to be undisputed. Plaintiff was a tenant of defendant, having rented a service station in Dallas, Texas, from it under a written lease for a term of one year ending April 29, 1967. In a separate written agreement defendant agreed to provide a cost-free inventory of gasoline to plaintiff, and plaintiff agreed to pay therefor after he sold it.

Defendant loaned the sum of $1,240.87 to plaintiff with which he purchased certain equipment and merchandise, and covering which he gave defendant a promissory note and a Security Agreement giving to defendant a security interest in the equipment listed on a schedule attached thereto.

Plaintiff was unable to settle for gasoline he had sold and, after making demand for such settlement, defendant locked the gasoline pumps on April 18, 1967, to prevent further sales. Plaintiff was also in default, both in the payment of rent due and in the payments due on his promissory note. He had been delinquent in his rental payments on two previous occasions; defendant had locked the gasoline pumps and had unlocked them when plaintiff paid the past due rents. On April 24, 1967, defendant's agents re-entered the premises by 'picking' the lock on the building, and removed plaintiff's service station equipment to defendant's warehouse. All of this was done in Dallas County. Defendant denies plaintiff's claim that these acts constituted trespass and conversion and says it was only re-entering its own property, plaintiff's right of occupancy having terminated by his failure to pay the rent due and his abandonment of the premises. Defendant contends that its right to do what it did is secured to it by the following provisions of the lease:

'4 (f). Lessee recognizes that the premises have an intrinsic value as a gasoline service station location and agrees to conduct his business thereon in such manner that its value as such will not depreciate, and in order to accomplish this purpose he will furnish such services and accommodations to retail gasoline customers as are customarily provided by gasoline service stations, including, but not limited to (1) keeping the premises open for operation for such hours and days as are necessary fully to serve and develop the business available, but in no event less than those business hours and days generally observed by competitive service stations in his area * * * (4) providing sufficient qualified and neatly dressed attendants to render first class service to customers, * * *.

'5. The obligations and covenants of Lessee set forth in this lease shall be deemed conditions. Upon any default thereunder, and if such default is not cured within ten (10) days after written notice from Lessor to Lessee specifying such default, or if after notice of any default and cure thereof, Lessee again defaults in the same or similar particulars, * * * or should Lessee cease to operate said premises as an automotive service station, or abandon said premises (abandonment shall be conclusively presumed in any event if the premises are not open and used for the normal conduct of business during any period of sixty (60) consecutive hours), Lessor may without notice immediately terminate this lease and all Lessee's rights hereunder and re-enter and, in any lawful manner, resume possession of said premises, Lessee hereby waiving any claim against Lessor and the benefit of all statutory rights inconsistent herewith . In event of such re-entry, Lessor may buy for its own account, or sell or store for the account of Lessee, any...