Houston Pilots v. Goodwin

• Decision Date: 06 January 1944
• Docket Number: No. 11583.,11583.
• Citation: 178 S.W.2d 308
• Parties: HOUSTON PILOTS et al. v. GOODWIN et al.
• Court: Texas Court of Appeals

178 S.W.2d 308

HOUSTON PILOTS et al. v. GOODWIN et al.

No. 11583.

Court of Civil Appeals of Texas. Galveston.

January 6, 1944.

Rehearing Denied March 1, 1944.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action by E. C. Goodwin and others against Houston Pilots and others for damages sustained by plaintiffs, Galveston Pilots, by reason of defendant's allegedly wrongful acts in piloting ships in the Galveston navigation district and collecting pilotage therefor. From a judgment overruling defendants' pleas of privilege to be sued in Harris County as the place of their residence, the defendants appeal.

Affirmed.

Charles Murphy, of Houston, for appellants.

Theodore B. Stubbs, Charles J. Stubbs, and William D. Decker, all of Galveston, for appellees.

CODY, Justice.

This is a plea of privilege case, embracing the appeals of twenty-two defendants from an order of the District Court of Galveston County overruling their several pleas to be sued in Harris County, as the place of their residence. There are also defendants in the case who reside in Galveston County but who, of course, are not parties to the contest over venue, so are not parties to this appeal.

The Galveston-Texas City pilots (hereafter called Galveston pilots) and the Houston pilots maintain at all times the weather permits a pilot boat on the Galveston Bar. On the merits this case is a contest between the Galveston pilots and the Houston pilots involving the right of pilotage of vessels which are brought into Bolivar Roads, and which, after anchoring there, put back to sea without proceeding to any landing place either in the Port of Galveston or the Port of Houston. Bolivar Roads is a roadstead or protected anchorage inside the harbor lines of Galveston Harbor. After January 1, 1942, due to the war, so-called "refuge" ships have been and are being brought into the Roads, which have no intention of proceeding to any landing place inside Galveston Bar, but anchor there for the purpose of being formed into convoys, or for safety.

The appellees, six in number, are the branch pilots of the State for the Port of Galveston. The appellants, except the "Houston Pilots", an unincorporated association, and R. S. Smith, its secretary, are the branch pilots of the State for the Port of Houston, and are the members and all the members of appellant "Houston Pilots".

By their action appellees seek to recover from appellants, and from defendants alleged to be their agents and employees residing in Galveston County, as damages the sum of $5000 by reason of appellants having collected inward and outward pilotage, totalling such amount, since January 1, 1942, on 80 vessels brought into the Roads by appellants, and which put back to sea without proceeding to a landing place. The action is also one to recover the forfeiture of $50, prescribed by Art. 8277, Vernon's Ann.Civ.St. on each of said 80 vessels, in addition to the alleged damages of $5000; appellees alleging that they were at all times ready, able and willing to pilot said ships, which they claim were wrongfully piloted by appellant-pilots. The action is also brought against the pilot commissioners of the Port of Galveston, which defendants are not parties to this appeal, to compel them by mandatory injunction to prevent the Houston pilots from acting as pilots on ships whose destination is Bolivar Roads, and which do not thereafter proceed to a point within the Harris County Houston Ship Channel Navigation District (whose port is Houston).

Subject to their pleas of privilege, appellants answered, urging numerous special exceptions, and traversed the allegations of appellees' petition with a general denial, and specially denied in detail such allegations.

In their controverting affidavits to the pleas of privilege, appellees asserted that this action is maintainable in Galveston County against appellants by virtue of Subdivisions 23, 4, 9, 5 and 29a, of Art. 1995, Vernon's Ann.Rev.Civ.St., and by reason of the facts alleged in the controverting affidavits. The facts alleged in the controverting affidavits were substantially those alleged in appellees' petition. The allegations of said controverting affidavits, alleged as pertinent to each such subdivision, were by appellees marshalled by reference under such subdivision. It was alleged that the action was maintainable in Galveston County:

(a) By virtue of Subd. 23, for the reason that the defendant "Houston Pilots" is an unincorporated association or joint stock company, and the cause of action arose in Galveston County. The facts which it was contended constituted the "Houston Pilots" were set forth; and it was alleged that a part of the cause of action as alleged in appellees' first amended original petition arose in Galveston County.

(b) By virtue of Subd. 23, for the reason that defendant "Houston Pilots" is an unincorporated association or joint stock company having an agency and representative in Galveston County. The facts relative to the office maintained by appellants in Galveston County were alleged, as well as the fact that Richard Dean is employed by appellants, that he resides in Galveston County, is in charge of said office, and the services he performs were described.

(c) By virtue of Art. 1995, Subd. 4, for the reason that there are more than two defendants residing in different counties, some of which defendants, namely, Dean, Ryberg, Barfield and George, reside in Galveston County. It was alleged that said defendants are agents and employees of the appellant pilots. It was alleged that Dean was in charge of the Galveston office of appellants, and the nature of the work done by the other three defendant employees of appellants who reside in Galveston County was described, and it was alleged that such labors were essential to the successful operation of the appellants in the alleged unlawful handling of vessels for which damages are sought to be recovered.

(d) By virtue of Subd. 4, for the reason there are more than two defendants residing in different counties, some of whom, namely, Langben, Gangler, Rhodes, Cohen and Purdy, reside in Galveston County. Said defendants are those sued as the pilot commissioners of the Port of Galveston-Texas City, and they are alleged to reside in Galveston County.

(e) By virtue of Subd. 9, for the reason that this suit is based upon a trespass and offense committed in Galveston County. In this connection it is alleged that the acts done by the appellants and their alleged agents and employees were willfully done by them, and same constituted an intentional invasion of the legal rights of appellees and "* * * the unauthorized acts of said defendants in piloting vessels to and from and into and out of that portion of the Port of Galveston known as Bolivar Roads as described in said amended petition and in this controversy in the manner and under the conditions stated in the pleadings covering ships as to which these plaintiffs were entitled to perform the pilotage and collect the pilot fees, constituted a trespass and offense committed in Galveston County."

(f) By virtue of Subd. 5, for the reason that the appellants have contracted and agreed as evidenced by memorandum in writing to perform an obligation in Galveston County, expressly naming a definite place therein.

(g) By virtue of Subd. 29a, for the reason that there are more than two defendants in the suit and such suit is lawfully maintainable therein under the provisions of Art. 1995 as to some, any and/or all of the defendants, same being necessary parties thereto.

To said controverting affidavits appellants urged numerous special exceptions, and denied the allegations thereof generally, and specially denied certain of them.

The issues on the pleas and controverting affidavits were heard by the court without a jury, and, as above indicated, overruled. Appellants seasonably requested conclusions of fact and law, but before they could be prepared and filed, the beloved Judge J. C. Canty, before whom such controversy was heard, died. The parties have not cited authorities relative to the conclusions of fact and law which were actually filed, and in the absence of such aid we have not felt constrained to make an investigation. We have concluded to treat this case as though no request for conclusions of fact and law was made, or that it was withdrawn.

Appellants present the points upon which they seek a reversal through some twelve pages of their brief. We, therefore, cannot set them forth. They are based, however, upon appellants' position; that the "Houston Pilots" is not an unincorporated association, and not a suable entity; that appellant pilots have the exclusive right to the pilotage of ships inward and outward bound from Bolivar Roads; that a branch pilot is a state officer; and that the Court was without jurisdiction in hearing the venue contest to do other than order the pleas sustained; and that appellees failed to plead and prove the venue facts necessary to sustain venue in Galveston County against appellants.

Opinion.

The several states are without power to regulate the pilotage of vessels engaged in coastwise or domestic commerce, generally referred to as "enrolled" vessels. But until the Congress acts to regulate the pilotage of "registered" vessels, those engaged in foreign commerce, the power remains with the states to do so. 48 C.J. 1184; Anderson v. Pacific Coast Steamship Company, 225 U.S. 187, 32 S. Ct. 626, 56 L.Ed. 1047. It appears that the word branch is used in England to signify the certificate held by a brother of the Trinity House,¹ an association of mariners first chartered by Henry VIII.² It is likewise the term applied to certificate given by the Trinity House to pilots who have passed an examination as to their competence.¹ In England a branch pilot is the holder of such certificate.

Doubtless everywhere pilots are licensed to practice pilotage only in particular waters, and...