Humble Oil & Refining Co. v. Preston

• Decision Date: 22 November 1972
• Docket Number: No. 7395,7395
• Citation: 487 S.W.2d 956
• Court: Texas Court of Appeals
• Parties: HUMBLE OIL & REFINING COMPANY, Appellant, v. Jay M. PRESTON, Appellee.

Page 956

487 S.W.2d 956

HUMBLE OIL & REFINING COMPANY, Appellant, v. Jay M. PRESTON, Appellee.

No. 7395.

Court of Civil Appeals of Texas Beaumont.

Nov. 22, 1972.

Rehearing Denied Dec. 14, 1972.

Robert D. McGee and Carnegie H. Mims, Jr., Houston, for appellant.

Charles H. Clark, Tyler, for appellee.

KEITH, Justice.

This venue appeal involves only subdivision 27, Article 1995, Vernon's Ann.Civ.St., and although there are several points in appellant's brief, only two questions are presented: (1) there was no evidence that Humble had an 'agency' or 'representative' in the county as required by the subdivision, and (2) the subdivision violates the United States Constitution because it unconstitutionally discriminates against foreign corporations as contrasted with domestic corporations governed by subdivision 23, Article 1995, V.A.C.S.

Humble is a corporation organized under the laws of the State of Delaware and its principal place of business is in Houston, Harris County, Texas, where it maintains its general offices, a large number of employees, and its resident agent for service of process. Plaintiff is a resident of Gregg County, Texas, and alleged that he sustained personal injuries proximately caused by negligent acts and omissions of Humble in Wood County. Plaintiff brought suit in Jefferson County and service of process was had upon one Bill Tarrant, not Humble's registered agent for service. It was shown by Tarrant's testimony that he lived in Jefferson County, was field superintendent for Humble in Jefferson County, supervising production from two oil and gas fields and the operation of the processing plants in connection therewith. Tarrant had some 27 to 29 people under him and he supervised the production from some 200 oil and gas wells. He had, according to his testimony, no authority to hire and fire the employees and could enter into emergency contracts for repairs when the amount involved did not exceed one thousand dollars.

Plaintiff made no effort to prove a cause of action, contenting himself with his proof on the existence of an 'agency' or 'representative' of Humble in Jefferson County. At the conclusion of the hearing, the trial court overruled the plea of privilege without filing any findings of fact or conclusions of law. Thus, we must follow the rule announced in James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959), and which requires that 'every reasonable intendment must be resolved in favor of the trial court's judgment.'

Under subdivision 27, foreign corporations 'may be sued in any county . . . where such company may have an agency or representative . . ..' Whether or not Tarrant was such an agent or representative as mentioned under the statute is essentially one of fact and, as was said in Advance-Rumely Thresher Co. v. Moss, 213 S.W. 690, 694 (Tex.Civ.App., Austin, 1919, error ref.), '(I)f William Connolly & Co. were in fact the agents and representatives of appellant in the transaction of its business, it was not competent for the parties to defeat the operation of the statute above cited by a special contract or limitation of authority.' Justice Garwood quoted the foregoing language with approval in the leading case on the subject, Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, 197 (1952).

Justice Garwood, possibly as dictum but still pursuing his point, recognized that the presence in the county of a mere servant performing menial tasks, even though the doctrine of respondeat superior would apply, is insufficient to maintain venue. The agent or representative, as mentioned in the statute, must be possessed of powers and discretion far beyond those of a servant. Construing the statute involved here, the court continued:

'(I)n our opinion, the statute refers to a situation in which the business of the defendant, is, in more or less regular and permanent form, actually conducted in the county of suit, Or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of 'agency' and the other of 'representative." (250 S.W.2d at 198, emphasis supplied)

Under this test, we are of the opinion that agency was established by the testimony of Tarrant. See also, Allis-Chalmers Mfg. Co. v. Coplin, 445 S.W.2d 627, 628 (Tex.Civ.App., Texarkana, 1969, no writ). Points one and two are overruled.

Humble has three points attacking the constitutionality of subdivision 27 as applied to the facts of this case, the points being copied in the margin. ¹ The views of the writer of this opinion upon the subject have been expressed heretofore in the form of a concurring opinion reported as Hanover Insurance Company v. Sanford, 457 S.W.2d 115, 119 (Tex.Civ.App., Beaumont, 1970, no writ), and need not be repeated at this point.

The Texas cases upon the subject which will be considered in this connection are: (1) The McDaniel Case (Fireman's Fund Insurance Company v. McDaniel, 327 S.W.2d 358 (Tex.Civ.App., Beaumont, 1959, no writ)); (2) the Torrez Case (Maryland Casualty Company v. Torrez, 359 S.W.2d 559 (Tex.Civ.App., Eastland, 1962, error dism., Torrez v. Maryland Casualty Company, 363 S.W.2d 235 (Tex. 1962)); and (3) the Adams Case (Commercial Insurance Co. of Newark, New Jersey v. Adams, 366 S.W.2d 801 (Tex.Civ.App., Houston, 1963, error ref., 369 S.W.2d 927 (Tex.1963)). Hereafter, we will refer to these cases by the name of the individual party thereto.

Humble has an ingenious argument supporting its position on these points. It urges, in substance, that this court in McDaniel struck down subdivision 27 as being unconstitutional upon two grounds: (a) it affords a wider venue for actions against foreign corporations than is afforded against domestic corporations under subdivision 23; and (b) under subdivision 23, a plaintiff is required to prove a cause of action against a domestic corporation in order to maintain venue, whereas, such is not required under subdivision 27 Solely because the defendant in the latter instance is a foreign...