Mason Feed Store v. Starks

• Decision Date: 05 January 1966
• Docket Number: No. 11349,11349
• Citation: 398 S.W.2d 392
• Parties: MASON FEED STORE et al., Appellants, v. Mrs. James W. STARKS et al., Appellees.
• Court: Texas Court of Appeals

Page 392

398 S.W.2d 392

MASON FEED STORE et al., Appellants, v. Mrs. James W. STARKS et al., Appellees.

No. 11349.

Court of Civil Appeals of Texas, Austin.

Jan. 5, 1966.

Rehearing Denied Jan. 26, 1966.

Blanks, thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, for appellants.

Harold Schmidt, Mason, Brown, Sparks & Erwin, Will Barber, Byrd, Davis & Eisenberg, Tom H. Davis, Austin, King, Willoughby, Dickenson & Batjer, C. R. Dickenson, Abilene, for appellees.

PHILLIPS, Justice.

This is a venue case involving the action of the court in respect to the various pleas hereinafter described. James W. Starks was killed in McCulloch County, Texas, in January of 1964 when a truck owned by Mason Warehouse Association, Inc., and driven by Starks was struck from the rear by a truck owned and operated by W. J. Briley.

As a result of this collision, suit was filed in the District Court of McCulloch County by the deceased's widow, Mrs. Starks, against the Mason Feed Store, W. J. Briley and his brother Homer Briley, Jr. The Mason Warehouse Association, Inc. intervened in the suit to recove for property damage to its truck and trailer.

In the trial court, Mrs. Starks was plaintiff, Mason Warehouse Association, Inc. was intervenor, and the Mason Feed Store, W. J. Briley and his brother Homer Briley, Jr. were defendants.

All defendants filed pleas of privilege. At a hearing held thereon, the pleas of Mason Feed Store and W. J. Briley were overruled and the plea of Homer Briley, Jr. was sustained.

Mason Feed Store perfected its appeal from the overruling of its plea. Mrs. Starks and the intervenor excepted to the court's ruling insofar as it sustained the plea of Homer Briley, Jr., and perfected their appeal.

No appeal has been taken from the court's action in overruling the plea of W. J. Briley and such action is therefore final.

We affirm the judgment of the trial court.

The Mason Feed Store is a partnership comprised of Victor Lehmberg and Marvin McMillan, Jr. and has its principal place of business in Mason County. On and prior to January, 1964, it had executed a grain handler's agreement with the U. S. Department of Agriculture Commodity Credit Corporation. Under this agreement it was to receive grain from the CCC, store it and issue it on purchase orders that had been secured from the Agricultural Stabilization Committee in Mason. This grain was owned by the CCC and stored with The Continental Grain Company in Brownwood, Texas.

Since Mason Feed Store had two trucks and a Railroad Commission carrier permit to haul grain, it made successive, separate oral agreements with the CCC to haul the grain from the Continental Grain Company at Brownwood to the Mason Feed Store in Mason, Texas. The specific contract involved here was for the hauling of two million pounds of milo between December 31, 1963 and January 30, 1964.

Under the Mason Feed Store's hauling agreement with the CCC, it was its obligation and responsibility to pick up the grain at Brownwood and haul it to Mason on its trucks under its carrier permit. This grain was released by the Continental Grain Company to the Mason Feed Store on authority from the CCC. When the Mason Feed Store picked up a load of grain at Brownwood, a truck bill of lading was executed, copies of which were given to the driver, which were, in turn, delivered by him to the Mason Feed Store.

On a Saturday preceding the collision in which Mr. Starks was killed, the Mason Feed Store made an agreement with Homer Briley, Jr. to haul as many loads of milo from Brownwood to Mason as he could by the following Wednesday. For this, he was to be paid 10 cents per hundred pounds by Mason Feed Store. This was the same grain that Mason Feed Store was obligated to haul under its agreement with the CCC.

Since Homer Briley, Jr. owned several trucks and trailers, the Mason Feed Store asked him to haul as many loads of grain for them as he could. No specific number of loads were mentioned and Homer Briley testified that under the agreement he was free to haul as many loads as he could or none at all.

This hauling arrangement was made directly with Homer Briley, Jr., and the Mason Feed Store expected him to do the hauling on his trucks with his drivers.

Neither Homer Briley, Jr. nor W. J. Briley had a Railroad Commission Permit authorizing them to carry the grain.

Two loads were hauled by virtue of this agreement, however neither were hauled by Homer Briley, Jr. One was hauled by H. D. Poe, whome Homer Briley, Jr. described as a farmer who does a little trucking, and the other load was hauled by W. J. Briley, Homer Briley, Jr.'s brother. Homer Briley, Jr. testified that the check he received from Mason Feed Company was made payable to H. D. Poe and that he turned the entire amount over to H. D. Poe. He testified further that had he been paid for W. J. Briley's load, he would have likewise turned over the entire amount to W. J. As to any agreement he might have had with W. J. Briley, Homer Briley, Jr. testified that he 'just tole him they had the grain to haul and that they were needing somebody to help them, and if they got done unloading down here early enough, to go back up there to load a load if he wanted to do it. In other words, I didn't say he had to go or nothing.'

On January 20, 1964, W. J. Briley picked up a load of CCC grain from the Continental Grain Company in Brownwood to be hauled to the Mason Feed Store under its hauling contract with the CCC and its subsequent hauling agreement with Homer Briley, Jr. Upon receiving this grain, W. J. Briley executed a bill of lading which listed the shipper as the Continental Grain Company, and the carrier as Mason Feed Store. W. J. Briley signed the bill as Mason Feed Store's 'authorized representative.'

While enroute to deliver this grain to the Mason Feed Store, W. J. Briley collided with the truck being driven by James W. Starks and Starks was killed.

After the collision, the Mason Feed Store had the grain picked up at the scene of the accident and brought to their store in Mason. A copy of the bill of lading, which had been executed by W. J. Briley when he picked up the grain in Brownwood, was sent by the Mason Feed Store to the CCC office in Kansas City for payment. Upon that bill of lading, Mason feed Store was paid by the CCC for the delivery of the load of grain.

Mason Feed Store is before this Court on one point of error, being that of the trial court in refusing to sustain their plea of privilege inasmuch as there are no facts sufficient to establish venue in McCulloch County, Texas.

We overrule this point.

The trial court made no findings of fact consequently, we will view the necessary venue facts raised by the pleadings and evidence most favorable to appellees. See this Court's opinion in Ball v. Martin, 277 S.W.2d 182.

Article 911b, Vernon's Ann.Civil Statutes is a comprehensive act requiring, in part, that one who hauls for hire over the highways of this State between incorporated cities must have a permit from the Railroad Commission. Mason Feed Store had such a permit, however neither of the Briley Brothers had one. There is no question but that a permit was necessary for a carrier to haul grain under the facts of this case. The record discloses that both Brileys knew this.

Article 1690b, Vernon's Ann.Penal Code of Texas, provides in part as follows:

'(a) Every * * * person who violates or fails to comply with or procures, aids or abets in the violation of any provision of this Act (Art. 911b) * * * shall be guilty of a misdemeanor * * *.'

By procuring Homer Briley, Jr. and through him, W. J. Briley to carry a load of CCC grain from Briley to carry a Mason for the Mason Feed Store, neither of whom had a railroad Commission permit, Mason Feed Store procured, aided and abetted in the violation of Art. 911b, within the meaning of Art. 1690b of the Vernon's Ann.Penal Code and by reason thereof Mason Feed Store was guilty of negligence per se. See Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587. We hold...