Heldt Bros. Trucks v. Silva, 579

• Decision Date: 18 February 1971
• Docket Number: No. 579,579
• Citation: 464 S.W.2d 931
• Parties: HELDT BROS. TRUCKS, Appellant, v. Bennie SILVA, Appellee.
• Court: Texas Court of Appeals

Page 931

464 S.W.2d 931

HELDT BROS. TRUCKS, Appellant, v. Bennie SILVA, Appellee.

No. 579.

Court of Civil Appeals of Texas Corpus Christi.

Feb. 18, 1971.

Lloyd, Lloyd, Ellzey & Lloyd, E. G. Lloyd, Jr., Alice, for appellant.

Stone, Luther & Dyer, Curtis B. Dyer, Corpus Christi, for appellee .

OPINION

BISSETT, Justice.

This is a venue suit and involves an appeal by Heldt Bros. Trucks, a partnership, and the individual members of the firm, from an order of the trial court overruling their plea of privilege to be sued in Jim Wells County, Texas.

The plaintiff, Bennie Silva, appellee herein, a resident of Nueces County, Texas, instituted suit in Nueces County, Texas against B. R. Scogin, d/b/a Jennings Chevrolet Company, a resident of Nueces County, Texas, by the filing of his original petition on January 2, 1968. He sued for damages for loss of cottonseed and damages to his truck and trailer alleged to have been sustained on or about November 6, 1967, when the defendant endeavored to remove plaintiff's truck and trailer from the borrow ditch along a portion of U.S. Highway No. 77, at a point about 7 miles south of Sarita, in Kenedy County, Texas, where the truck had bogged down.

Plaintiff filed his first amended original petition on January 21, 1969 whereby he complained of the original defendant and also named Heldt Brothers Trucks, a corporation, having its main office in Alice, Texas, as a party defendant, the effect of which was to allege joint and several liability against both defendants. On June 19, 1969, Heldt Bros. Trucks, a partnership, and Roland Heldt and the other partners in the firm of Heldt Bros. Trucks, appellants herein, made an appearance by the filing of their plea of privilege, duly verified, seeking removal of the suit as to the partnership and its partners to Jim Wells County, Texas, the county of the residence of said parties. They also filed their original answer on June 19, 1969, subject, however, to and without waiving, their plea of privilege theretofore filed.

Appellants assert (as Paragraph I of their pleading designated as their Plea of Privilege) in part that 'they do not know of any corporation by the name of Heldt Brothers Trucks and defendants further represent that there is in fact no corporation by the name of Heldt Brothers Trucks'. On June 24, 1969, Silva filed his controverting affidavit wherein he stated: 'Defendant Heldt Bros. (Brothers) Trucks is also properly before this Court'; a copy of his first amended original petition was attached thereto and the statement 'and the allegations contained therein are true and correct' appears in the controverting affidavit .

On April 22, 1970, Silva filed his second amended original petition where he again alleged that Heldt Brothers Trucks is a corporation. He filed a trial amendment to his controverting affidavit on May 8, 1970, asserting venue under Sections 4, 9a and 29a of Article 1995, Vernon's Ann.Tex.Civ.St. He attached a copy of his second amended original petition to the trial amendment to his controverting affidavit. In the trial amendment he avers that the allegations contained in the attached pleading 'are true and correct'. Paragraph III of the trial amendment reads, in part, as follows: 'The allegations contained in Plaintiff's Second Amended Original Petition allege a cause of action against two Defendants, Heldt Bros. (Brothers) Trucks and B. R. Scogins. * * *' This was the status of the pleadings in the trial court.

Since the adoption of Rule 86, Texas Rules of Civil Procedure, any of the matters required to be denied under oath by Rule 93, T.R.C.P., and which are not so denied, are now taken as admitted upon the hearing of the plea of privilege. North Texas Tank Company v. Pittman, 290 S.W.2d 724, 729 (Tex.Civ.App., Texarkana, 1956, n.w.h.). Conversely, if in a plea of privilege any of the matters required to be denied under oath by the Rule are so denied in the plea of privilege, then it becomes necessary for the plaintiff, who is resisting the plea of privilege, to offer proof of such matters. In this case, appellants, in their plea of privilege, denied under oath that Heldt Brothers Trucks, alleged in appellee's pleadings to be a corporation, was incorporated as alleged; appellants, therefore, complied with Rule 93(g), T.R.C.P. and appellee was therefore required to prove that Heldt Brothers Trucks was a corporation. Appellee failed to do this and now concedes that he could not and cannot make such proof.

The plea of privilege was overruled by the trial court by order signed and entered on June 25, 1970. The order specifically states that venue in Nueces County, Texas is sustained under the provisions of Subdivisions 4 and 29a of the statute and eliminates 9a as a basis for maintaining venue in Nueces County, Texas in that Subdivision 9a of the statute was not urged by the plaintiff. Appellants have duly and timely perfected an appeal to this Court from the order overruling their plea of privilege.

At the hearing on the plea of privilege, it was stipulated that Scogin resided in Nueces County, Texas, at the time suit was filed. Neither Silva nor Scogin testified at the hearing, and the only evidence offered by the appellee Silva was portions of his own deposition and that of Milton Kruckemeyer. Both depositions were taken on April 30, 1969 with Silva, Kruckemeyer, and the respective attorneys for Silva and Scogin present. Neither Heldt Brothers Trucks, a corporation, Heldt Bros. Trucks, a partnership, nor any of the individuals composing the partnership were present. At the time of the taking of the depositions, Heldt Brothers Trucks, a corporation, had been made a party defendant to the suit. It was never served with citation and has never made any appearance in the suit. The record shows, and Silva concedes, that the depositions were taken at a time when neither Heldt Bros. Trucks, a partnership, nor any of the partners of the firm were parties to the suit, had any notice of the taking of the same, or participated therein.

In order to support the trial court's ruling, Silva relies on that portion of Subdivision 4, Article 1995, V.A.T.S., providing 'Defendants in different counties.--If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * *' Appellants, in their Second and Third Points of Error, complain that Silva did not plead and prove the necessary facts to sustain venue in Nueces County, Texas.

Under Subdivision 4, Article 1995, V.A.T.S., where there are resident and non-resident defendants, it has long been the rule that in order to maintain venue in the county of the resident defendant, the plaintiff is required to (1) plead and prove that one of the defendants is a resident of the county of suit; (2) plead and prove a cause of action against the resident defendant; and (3) allege a joint cause of action against the resident and non-resident defendant or a cause of action against the resident defendant so intimately connected with his cause of action against the nonresident defendant as that they are properly joinable under the rule intended to avoid a multiplicity of suits, proof of which is supplied by the allegations of his petition. Stockyards Nat. Bank v . Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Western Steel Company v. Hayek, 452 S.W.2d 732, 734 (Tex.Civ.App., Corpus Christi, 1970, n .w.h.); Pittsburgh Plate Glass Company v. Bragg, 383 S.W.2d 623 (Tex .Civ.App., Dallas, 1964, wr. dism'd.). It is not questioned but that Silva alleged a cause of action against Scogin, the resident defendant, and the deposition testimony, if admissable (which we hold was not), would have proved a cause of action against him. It was then, under this particular subdivision, necessary to allege a joint cause of action against the non-resident defendant pleading their privilege (in this case, Heldt Bros. Trucks, the partnership) or a cause of action so intimately connected with the cause of action alleged and proved against the resident defendant that they may be joined to avoid a multiplicity of suits. Harry Newton, Inc. v. H. Richards Oil Company, 385 S.W.2d 893, 898 (Tex.Civ.App., Austin, 1965, n.w.h.).

To defeat the plea of privilege, it was incumbent on Silva not only to plead and prove a cause of action against the resident defendant, but to Allege a cause of action against the non-resident defendant. This he did not do. Silva has alleged a joint cause of action against the resident defendant and against Heldt Brothers Trucks, a corporation, a non-resident defendant. The corporate non-resident defendant is not a party to this appeal. Silva did not, in any of his pleadings, allege a cause of action against Heldt Bros. Trucks, the partnership, or against any of the partners in the firm, the parties who are asserting the plea of privilege. Under statutory provision, a corporation is a person. Article 23, Sec. 2, V.A.T.S. And, a corporation is a separate entity distinct from members who compose it and acts only through its officers or agents. W. T. Grant Company v. Wilson Industries, Inc., 346 S.W.2d 629 (Tex . Civ.App., Texarkana, 1961, wr. ref. n.r.e.). More particularly, a corporation is distinguishable from a mere aggregation of individuals associated for a common cause. Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554 (1925).

Silva, by supplemental brief, earnestly contends that Heldt Bros. Trucks, the partnership, is the true party in interest, who appeared, filed a plea of privilege and answered generally. He further asserts that the suing of Heldt Brothers Trucks, a corporation, amounted to no more than a misnomer and that no one was misled. He also postulates that 'there was no doubt about the party intended to be sued.' Irrespective of the reasons assigned, we are of opinion that such contentions have no legal significance in the instant case. There is no misnomer present and the authorities cited by Silva...