J. A. & E. D. Transport Co. v. Rusin

• Citation: 202 S.W.2d 693
• Decision Date: 23 April 1947
• Docket Number: No. 11696.,11696.
• Parties: J. A. & E. D. TRANSPORT CO. et al. v. RUSIN.
• Court: Court of Appeals of Texas

202 S.W.2d 693

J. A. & E. D. TRANSPORT CO. et al. v. RUSIN.

No. 11696.

Court of Civil Appeals of Texas. San Antonio.

April 23, 1947.

Rehearing Denied May 21, 1947.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Fifty-Seventh District, Bexar County; C. K. Quin, Judge.

Action by Thomas J. Rusin against J. A. & E. D. Transport Company and others to recover for injuries sustained when plaintiff's automobile was struck by a tractor-trailer. From an order overruling a plea of privilege, defendants appeal.

Affirmed.

Scott, Wilson & Cureton, of Waco, for appellants.

D. F. Davis and Tom H. King, both of San Antonio, for appellee.

NORVELL, Justice.

This is an appeal from an order overruling a plea of privilege. The trespass clause of exception 9 of Article 1995, Vernon's Ann.Civ.Stats., is involved.

The appellee here (plaintiff below) is Thomas J. Rusin. Appellants (defendants below) are J. A. & E. D. Transport Company, a party under Rule 28, Texas R.C.P., Coy Dillard and Edna Dillard. Appellants filed a joint plea of privilege. The style of the case, as stated in this pleading, was Thomas J. Rusin v. J. A. & E. D. Transport Company, and contained the following wording: "Come now the defendants and each of them, including Coy Dillard and Edna Dillard, and file this, their plea of privilege * * *." It was alleged defendants were not residents of Bexar County and that "each of such defendants were residents of Edwards County."

This plea was controverted and a trial had to a jury, which returned a special issue verdict upon which the order appealed from is based.

The only witness who testified was Thomas J. Rusin, the appellee. His testimony, for the most part, was of such a nature that it could easily have been controverted if untrue. Appellants, however, offered no evidence whatsoever.

It appears that during the daytime (6:15 P.M.) on May 10, 1946, Lieut. Rusin was driving his automobile in a northerly direction along Nogalitos Street, toward the central or business district of the City of San Antonio. Nogalitos Street is subject to heavy traffic and runs into South Flores Street, which is one of the main traffic arteries in the southern part of the City. When Lieut. Rusin reached a point about a block south of the South Flores-Nogalitos intersection, he stopped his automobile and gave a signal with his left hand, notifying the vehicles following him to stop also.

The reason for his stopping was that the traffic regulation signals at South Flores and Nogalitos Streets had halted all northbound traffic, and a line of automobiles and trucks about a block long was halted all along Nogalitos Street.

While Rusin's car was motionless and he was waiting for the light signal to change, his car was violently struck from behind by a north-bound vehicle, which caused his automobile to ram into the vehicle immediately ahead. Rusin suffered personal injuries as well as damage to his automobile as a result of the impact and collision.

The vehicle which ran into his automobile was a truck outfit, consisting of a tractor and trailer, which bore the insignia of "J. A. & E. D. Transport Company."

The jury found that the driver of the truck was guilty of three specific acts of negligence at and immediately prior to the time of the collision, to-wit: (1) In driving the truck at a rate of speed in excess of thirty miles per hour, (2) in not having the truck under proper control, and (3) in failing to keep a proper lookout.

By their first point here, appellants contend that the order must be reversed because there "is absolutely no competent evidence that Coy and Edna Dillard owned the vehicle involved in the collision."

Rule 28, R.C.P., reads as follows:

"A partnership or other unincorporated association, or an individual doing business under an assumed name, may sue or be sued in the partnership, assumed or common name for the purpose of enforcing for or against it a substantive right."

The effect of this rule is to treat the partnership, unincorporated association or business operated by an individual under an assumed name as a legal entity, at least to the extent of obtaining and enforcing a judgment against it. Mims Bros v. M. A. James, Inc., Tex.Civ.App., 174 S.W.2d 276.

In this case the "J. A. & E. D. Transport Company," whether it be in fact a partnership or a business operated under an assumed name, entered an appearance in this cause as a legal entity under the rule by filing a plea of privilege. We don't know what form of citation was employed to bring the J. A. & E. D. Transport Company into court, but we assume that the attorney who entered its appearance and who also signed an appeal bond in its behalf as a principal and appellant, was and is duly authorized to represent it. The J. A. & E. D. Transport Company was a party defendant below and is a party appellant here.

The operation of Rule 28, in connection with the venue statutes, was discussed by the El Paso Court of Civil Appeals in Heid Bros. v. Mueller-Huber Grain Company, 185 S.W.2d 470, 471, wherein it was said:

"Whether the partnership be regarded as a legal entity created by Rule 28, separate and distinct from the partners who compose it, or merely as a contractual status between the partners, it can have no residence for venue purposes other than the residence of the partners, in the absence of a residence prescribed by statute. There is a well-recognized distinction between `residence,' as used in our venue statute, and the principal office or place of business of a partnership. E. I. Du Pont de Nemours Powder Co. v. Jones Bros., D. C., 200 F. 638. Therefore, though the plea of privilege be filed by the legal entity, the only basis for it is the residence of the partners. If this were not so, there could be no valid plea of privilege by a partnership, the legal entity, to be sued in the county of its residence, since apart from the residence of the partners the legal entity has no residence."

We think it apparent that under this holding, which we believe is correct, that the effect of sustaining appellants' point would be at the same time to hold that the plea of privilege of the J. A. & E. D. Transport Company was fatally defective and consequently the venue as to it could be maintained in Bexar County where the suit was filed.

We decline to adopt a construction of the plea of privilege which would bring about this result.

Appellee alleged that Coy Dillard and Edna Dillard are doing business under the name of "J. A. & E. D. Transport Company." The J. A. & E. D. Transport Company, Coy Dillard and Edna Dillard filed a joint plea of privilege saying that each of them reside in Edwards County. The J. A. & E. D. Transport Company can not have a "residence" in Edwards County unless the owner or owners of the business reside there. The plea, if valid as to the transport company, must be construed as asserting that the transport company resides in Edwards County, because Coy Dillard and Edna Dillard reside in said county and are the owners thereof. Based upon the record, we hold that for venue purposes Coy Dillard and Edna Dillard are operating and doing business under the name of J. A. & E. D. Transport Company; in other words, that they are the J. A. & E. D. Transport Company.

This rule works no hardship upon the individual appellants who joined in the plea of privilege. If one or more of them had no connection with the J. A. & E. D. Transport Company and wished to avoid the construction of the plea which we have adopted, they could have pleaded that they had no interest in the company, rather than asserting, in effect, that they were the owners thereof.

Having concluded that, for the purposes of this appeal, Coy Dillard and Edna Dillard are the J. A. & E. D. Transport Company, it follows that the uncontradicted testimony of "the fact that the truck bore appellant's insignia, unexplained, was sufficient to raise the inference that (they) owned the truck and (were) operating it at the time of the collision." Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147, 1149. The case of Globe Laundry Co. v. McLean, Tex.Civ.App., 19 S.W.2d 94 is applicable here. We paraphrase what was said in that opinion. The testimony showed that the name of appellants under which they were operating and doing business was printed upon the truck. This testimony, uncontradicted and unexplained by appellants, was sufficient to raise the inference that appellants owned the truck and that it was being operated by one of its servants in the ordinary discharge of the duties of his employment. See also J. H. Robinson Truck Lines v. Jones, Tex.Civ.App., 139 S. W.2d 127; Freeman v. Texas Bread Co., Tex.Civ.App., 111 S.W.2d 307. We overrule appellants' first point.

As above pointed out, the jury found that the driver of the truck was guilty of three acts or omissions which constituted negligence. The jury also answered the attendant questions of proximate cause favorably to appellee. Appellants, by their second and third propositions, assert that, (1) there is no competent testimony that the truck was being driven at a rate of speed in excess of thirty miles per hour, and that (2) the issue relating to excessive speed was improperly submitted to the jury.

The evidence supporting the conclusion that the truck was being driven in excess of thirty miles per hour immediately prior to the collision is not as satisfactory as it might be. However, appellants' point raises a question of "no evidence" and not a question of "sufficient evidence." Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W. 2d 982. Rusin testified that he saw the truck approaching through his rear-view mirror. Although he stated he could not judge the speed of the approaching vehicle correctly from the rear mirror alone, the impact was sufficient to ram his stationary automobile into the vehicle immediately ahead, and smash both the front and rear end of his car. That immediately before the...