Howell v. Coca-Cola Bottling Co. of Lubbock, Inc., COCA-COLA

• Decision Date: 15 February 1980
• Docket Number: No. 9069,COCA-COLA,9069
• Parties: Reverend Rodney HOWELL, Appellant, v.BOTTLING COMPANY OF LUBBOCK, INC., Appellee.
• Court: Texas Court of Appeals

Page 208

595 S.W.2d 208

Reverend Rodney HOWELL, Appellant, v. COCA-COLA BOTTLING COMPANY OF LUBBOCK, INC., Appellee.

No. 9069.

Court of Civil Appeals of Texas, Amarillo.

Feb. 15, 1980.

Rehearing Denied March 12, 1980.

Mark Smith & Associates, Mark Smith, Lubbock, for appellant.

Crenshaw, Dupree & Milam, Tom A. Milam, Cecil Kuhne, Lubbock, for appellee.

COUNTISS, Justice.

This appeal requires us to determine (1) whether a suit by Reverend Rodney Howell, appellant, against Coca-Cola Bottling Company tolls the statute of limitations as to Coca-Cola Bottling Company of Lubbock, Inc., appellee and (2) whether the trial court erred in entering judgment for Coca-Cola Bottling Company of Lubbock, Inc. after sustaining its special exception raising the question of limitations. We reform the judgment of the trial court to show dismissal of the case instead of entry of judgment for appellee and, as reformed, affirm the judgment.

From the pleadings and other instruments in the record before us, the events pertinent to this appeal are as follows. On October 2, 1973, Reverend Howell took a partially empty bottle of Coca-Cola from his attorney's refrigerator in Lubbock, Texas, removed the self-sealing cap, mixed a portion of the Coca-Cola with bourbon and drank it. Thereafter, he became ill. On August 6, 1974, he sued Coca-Cola Bottling Company and alleged J. W. Wolslager of San Angelo, Texas as the defendant's agent for service. On August 21, 1974, Coca-Cola Bottling Company located in San Angelo, Texas filed an original answer consisting of a special exception alleging failure to state a cause of action and a general denial. No other instruments were filed until October 13, 1977, when Coca-Cola Bottling Company filed a motion for summary judgment claiming it did not sell the bottled product in question. Attached to the motion were several affidavits, one stating J. W. Wolslager was secretary-treasurer of Coca-Cola Bottling Company, a corporation located in San Angelo, Texas. Wolslager averred that Coca-Cola Bottling Company "does not sell to, deliver to or otherwise service with the . . . bottled product known as Coca-Cola, any business establishment in Lubbock, Lubbock County, Texas." Another affidavit by Pat McNamara, Jr. stated he was president of Coca-Cola Bottling Company of Lubbock, Inc.; his company bottles and sells Coca-Cola in the Lubbock area; and there is no connection between, or joint ownership of, his company and Coca-Cola Bottling Company located in San Angelo, Texas. The affidavits were not controverted.

Thereafter, Reverend Howell filed first, second and third amended petitions, continuing to name Coca-Cola Bottling Company as defendant. The first amended petition designated Pat McNamara, Sr. of Lubbock, Texas as Coca-Cola Bottling Company's duly authorized agent. Coca-Cola Bottling Company responded with a motion to quash the citation for service contending no service was had on the defendant, because neither Pat McNamara, Jr. nor Pat McNamara, Sr. were connected with, or agents of, Coca-Cola Bottling Company, the defendant in the case.

Reverend Howell in turn filed his second amended petition naming Pat McNamara, Jr. of Lubbock, Texas as president of the defendant corporation. Coca-Cola Bottling Company retaliated with another motion to quash contending Pat McNamara, Jr. was not an officer of or connected with Coca-Cola Bottling Company, the defendant in the case. Reverend Howell then filed his third amended petition on June 5, 1978 against Coca-Cola Bottling Company, naming Pat McNamara, Jr. as president and designating him for service of process. On June 26, 1978, the trial court quashed service of process on Pat McNamara, Jr. stating the service was not valid upon Coca-Cola Bottling Company.

On June 27, 1978, approximately four years and eight months after the alleged injury, Reverend Howell filed his fourth amended petition naming as the sole defendant "Coca-Cola Bottling Company of Lubbock, Inc." and requesting service on Pat McNamara, Jr., as its president. All five of Reverend Howell's petitions allege October 2, 1973 as the date of injury and contain similar allegations of negligence and damage. In the third and fourth amended petitions, he also alleges "(d)efendant is, and at all times mentioned herein was, engaged in the business of bottling and selling soft drinks throughout Lubbock County, Texas. The instrumentality complained of herein was a bottle of (d)efendant's product." In response to the fourth amended petition, Coca-Cola Bottling Company of Lubbock, Inc. filed its original answer, a general denial preceded by a special exception alleging the fourth amended petition showed on its face that it was barred by the statute of limitations.

With the foregoing matters in the record before it, the trial court heard the special exception on July 28, 1978, and by order dated January 5, 1979, sustained it and entered judgment in favor of Coca-Cola Bottling Company of Lubbock, Inc. This appeal is from that judgment.

Reverend Howell brings before this court four points of error. He contends (1) the district court erred in dismissing his suit because Coca-Cola Bottling Company of Lubbock, Inc. was properly sued under its trade name pursuant to rule 28 of the Texas Rules of Civil Procedure; ¹ (2) Coca-Cola Bottling Company of Lubbock, Inc. had a reasonable opportunity to defend the suit; (3) he should have been allowed to prove to the jury that Coca-Cola Bottling Company of Lubbock, Inc. had a reasonable opportunity to defend and (4) the court erred in sustaining the special exception of Coca-Cola Bottling Company of Lubbock, Inc. without granting him leave to amend. We will discuss the points in the order stated.

Rule 28 reads as follows:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the true name may be substituted.

Rule 28 creates a procedure that permits suit by or against a business entity for the purpose of enforcing for or against it a substantive right in its partnership, assumed or common name. The rule does not, however, change any substantive rights. Cohen v. C. H. Leavell & Co., Inc., 520 S.W.2d 793, 796 (Tex.Civ.App. El Paso 1975, no writ). One of the purposes of the rule is to permit a plaintiff to sue a business entity, or permit a business entity to sue, in the name by which it represents itself to the public. Obviously, however, the rule has no relevance to a case unless the suit is brought by or against the business entity in its assumed or common name. See, e. g., Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 830 (Tex.1975).

The case before us is not and never has been a suit against a business entity in its partnership, assumed or common name. The cause was originally filed against one corporation, Coca-Cola Bottling Company, in its corporate name. Subsequently, suit was filed against a second corporation with a different name and after the statutory time limit for bringing suit had expired. Rule 28 is not, under these facts, available to lift the bar of the statute of limitations.

Reverend Howell relies on Continental Southern Lines, Inc. v. Hilland, supra, and Cohen v. C. H. Leavell & Co., Inc., supra, to support his contention that rule 28 is applicable. The Continental Southern Lines, Inc. case, however, provides authority for the result we reach in this case. In that case, as in the one before us, suit was brought against a corporation in its corporate name and not against an entity operating under an assumed or common name. For that reason and others detailed in the opinion, rule 28 was held inapplicable.

The Cohen case involved two companies actually doing business under a common name. The court correctly applied rule 28 by holding that "the application of the rule of law permits a cause of action to be asserted against a separate entity after the statute of limitations has run, but this is not true as to just any entity but is limited to instances of doing business under an assumed name." Cohen v. C. H. Leavell & Co., Inc., supra, at 795-96.

In summary, we hold rule 28 is not applicable to this case, because nothing in the record indicates the two corporations in question were doing business under an assumed or common name. The institution of suit against one corporation will not interrupt the running of the limitation period against a different corporation. Stokes v. Beaumont, Sour Lake & Western Railway Co., 161 Tex. 240, 339 S.W.2d 877, 878 (1960). Accordingly, we overrule Reverend Howell's first point of error.

In his second point of error, Reverend Howell contends the bar of the statute of limitations should not be imposed because the two corporations in question are so intertwined that suit against the first corporation gave the second corporation notice of, and a reasonable opportunity to defend the case. This contention, however, is not supported by the record.

Statutes of limitations exist "to compel the exercise of a right within a reasonable time so that the opposite party has a fair...