Lone Star Finance Corporation v. Davis

• Decision Date: 09 November 1934
• Docket Number: No. 1325.,1325.
• Citation: 77 S.W.2d 711
• Parties: LONE STAR FINANCE CORPORATION et al. v. DAVIS.
• Court: Texas Court of Appeals

77 S.W.2d 711

LONE STAR FINANCE CORPORATION et al. v. DAVIS.

No. 1325.

Court of Civil Appeals of Texas. Eastland.

November 9, 1934.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit by A. L. Davis against the Lone Star Finance Corporation and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Castle, Gammage & Mercer, of Houston (Earl W. Gammage, of Houston, of counsel), for appellants.

John Davenport, of Wichita Falls, for appellee.

FUNDERBURK, Justice.

A. L. Davis sued Auto Refinance Corporation and Lone Star Finance Corporation, not alleging whether or not the defendants were corporations, other than once to refer to them as "said corporations." Plaintiff sought recovery of damages for the alleged conversion of a Chevrolet automobile, the market value of which was averred to be $575. He alleged that he had executed a note to Auto Refinance Corporation for $390, due in installments of $32.50 each month, beginning February 14, 1933, given for a loan of $300 used in part payment for said car, and that $90 of said note was usury. He alleged that on February 25, 1933, he agreed to deliver said car to the defendants, and that through their authorized collector and agent, Talmadge Potter, the latter agreed to hold said car for defendants for a period of 30 days from and after said February 25, 1933, and said agent agreed with plaintiff that if, before the expiration of the 30 days, the plaintiff could pay said note, defendants would make immediate delivery of said automobile to plaintiff. He further alleged that about 3 weeks thereafter he tendered to defendants the amount of said note, but that prior thereto the defendants "within a few days after said car was delivered to them disposed of same with the knowledge that they had agreed to give this plaintiff 30 days in which to pay said note, or the amount due the defendants, without knowledge or consent of this plaintiff, or without giving him an opportunity to redeem same." It was further alleged that plaintiff was a building contractor; that he had been out the use of the car for 4 months; that the reasonable worth and rental value of same to plaintiff during said time was $2.50 per day; and that, by reason of said conversion, plaintiff had been damaged in the sum of $305, in addition to the reasonable value of the car converted; the damages claimed for the last-named item, by reason of the amount acknowledged to be owing on the car, was limited to $275, making a total of damages claimed $580.

The Lone Star Finance Corporation filed a plea of privilege, in due form, to be sued in Harris county as the county of its residence. Plaintiff's controverting plea alleged, in substance, that the suit was for conversion of one Chevrolet automobile of the reasonable cash market value of $500, and for damages in the sum of $900; that said automobile was delivered to the defendants, Auto Refinance Corporation and Lone Star Finance Corporation, by turning same over to their agent, R. B. Morton, in Wichita county, Tex.; that, within 2 weeks after said car had been left with the defendants and their agent, said defendants, through their agent in Wichita county, had disposed of said automobile without any notice to, knowledge, or consent of the plaintiff, which transaction was referred to as a conversion of personal property, which, it was alleged, took place in Wichita county, and constituted a trespass within the provision of subdivision 9, art. 1995, R. S. 1925.

The Lone Star Finance Corporation urged a general demurrer to the controverting plea, which was overruled, after which, upon a hearing of the plea of privilege, same was also overruled, to which action both defendants excepted and gave notice of appeal. Although the order overruling the plea of privilege refers to pleas of both defendants, and purports to overrule both, the record shows no plea of privilege, nor controverting plea, as to the defendant Auto Refinance Corporation.

The case was tried on its merits, and, upon the verdict of the jury rendered in response to special issues submitted, the court gave judgment for the plaintiff against both defendants for the sum of $300, from which the defendants have appealed.

Plaintiff's controverting plea, in answer to the plea of privilege of Lone Star Finance Corporation, as a pleading received no aid from the plaintiff's petition. Conceding, as it has sometimes been held, that the plaintiff's petition may be made a part of a controverting plea by reference and adoption of its allegations, there was no such reference and adoption in the controverting plea here involved. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.(2d) 347; Bramblett v. Roby State Bank (Tex. Civ. App.) 67 S.W.(2d) 450; Lawless v. Tidwell (Tex. Civ. App.) 24 S.W. (2d) 515.

The controverting plea alleged that the suit was one for conversion of personal property, that the conversion consisted of disposing of a Chevrolet car without the knowledge or consent of the plaintiff, and that said car was so disposed of in Wichita county, Tex. We are of the opinion that the controverting plea, as against the general demurrer, sufficiently stated the fact, or facts, relied upon to fix the venue in Wichita county under exception 9 of R. S. 1925, art. 1995. In passing upon a plea of privilege properly controverted, the question to be determined by the judgment is whether the suit may be tried in the county where it is brought, or must be tried in the county of the residence of the defendant filing the plea of privilege. If the court has jurisdiction of a case, it is immaterial in the trial of the issues joined by a plea of privilege and controverting plea whether plaintiff's petition states a cause of action or not. Pleas of privilege, in due order of pleading, precede general demurrers. District court rule 7, 142 S. W. xvii; Townes' Texas Pleading, p. 517. A nonresident defendant, if entitled to have the venue changed, has the right to have the court of his domicile pass upon exceptions to the pleadings. To maintain venue under exception 9, two facts must be properly shown to exist: First, that the suit is one based upon a crime, offense, or trespass. The other, that the offense, crime, or trespass was committed in the county where the suit is brought. The conversion of personal property is a trespass. Palmer v. Pinkston (Tex. Civ. App.) 282 S. W. 668; Bowers v. Bryant-Link Co. (Tex. Com. App.) 15 S.W.(2d) 598; Hall v. Saunders (Tex. Civ. App.) 15 S.W.(2d) 717; Kirby v. Fitzgerald (Tex. Civ. App.) 35 S.W.(2d) 763; American Mort. Corp. v. Smith (Tex. Civ. App.) 35 S. W.(2d) 1092; Thorp Springs Christian College v. Dabney (Tex. Civ. App.) 37 S.W.(2d) 193; Graves v. Buzbee (Tex. Civ. App.) 45 S.W.(2d) 392; Carver Bros. v. Merrett (Tex. Civ. App.) 184 S. W. 741; Garden Valley Mer. Co. v. Falkner (Tex. Civ. App.) 189 S. W. 300; Bank of Carbon v. Coxe Mer. Co. (Tex. Civ. App.) 241 S. W. 602.

The controverting plea alleged the nature of the suit to be one to recover damages for the conversion of an automobile, that the automobile was converted by the defendants in Wichita county, and that the manner of making such conversion was by disposing of the automobile without the knowledge or consent of the plaintiff. The controverting plea, we think, clearly and certainly alleged the two essential facts above named, and was sufficient.

Appellants make the further contention that the plaintiff had the burden of proving, not only that his suit came within an exception of the venue statute, but also a "prima facie, bona fide, meritorious cause of action against appellants," which he failed to do. What has already been said sufficiently shows, we think, that, in our opinion, it is only necessary to allege in the controverting plea, and to prove the fact, or facts, necessary to show that the case comes within the exception relied upon to the general rule of venue.

There is some difference of opinion entertained by members of this court, as between themselves, upon the question of what constitutes sufficient pleading and proof of the fact, or facts to bring a case within some of the exceptions, as is disclosed in the majority and dissenting opinions in Compton v. Elliott (Tex. Civ. App.) 55 S.W.(2d) 247, and Stockyards Nat. Bank v. Maples (not at this time published because of the pendency on rehearing of certified questions to the Supreme Court), but we are all agreed that, to bring a case within exception 9, it is only necessary to plead and prove that the trespass upon which...