Merchants Fast Motor Lines v. Levens

• Decision Date: 13 April 1942
• Docket Number: No. 5435.,5435.
• Parties: MERCHANTS FAST MOTOR LINES, Inc., et al. v. LEVENS.
• Court: Texas Court of Appeals

161 S.W.2d 853

MERCHANTS FAST MOTOR LINES, Inc., et al. v. LEVENS.

No. 5435.

Court of Civil Appeals of Texas. Amarillo.

April 13, 1942.

Rehearing Denied May 11, 1942.

Appeal from District Court, Lubbock County; E. L. Pitts, Judge.

Suit by Jess C. Levens against Merchants Fast Motor Lines, Inc., and Sproles Motor Freight Lines, Inc., to recover sum allegedly due plaintiff for professional services in representing defendants in certain matters pending before the Railroad Commission of Texas. From a judgment overruling pleas of privilege of each of defendants, the defendants appeal.

Reversed, with instructions.

Rawlings, Sayers & Scurlock, of Fort Worth, for appellants.

Burton S. Burks and Victor H. Lindsey, both of Lubbock, for appellee.

JACKSON, Chief Justice.

The plaintiff, Jess C. Levens, instituted this suit in the District Court of Lubbock County against the defendants, Merchants Fast Motor Lines, Inc., hereinafter called the Merchants company, and Sproles Motor Freight Lines, Inc., hereinafter designated the Sproles company, to recover against the defendants the sum of $1,333.32. The cause of action consisted of an alleged agreement between plaintiff and the defendants by the terms of which the professional services of the plaintiff were engaged by the defendants to represent them in certain matters pending before the Railroad Commission of Texas. The general provisions of the agreement stipulated that the defendants were to pay to the plaintiff a reasonable attorney's fee for his services together with all the necessary expenses incurred by him for the defendants in the discharge of his professional services; that he performed the services as agreed and incurred necessary expenses for the benefit of the defendants which, with a reasonable fee, aggregated the sum above specified which the defendants have failed and refused to pay to plaintiff's damage in said amount.

Each of the defendants in due time and in proper form filed its plea of privilege praying that the suit be removed to the District Court of Tarrant County where each of the defendants asserted it maintained its principal place of business which constituted its domicile.

The plaintiff filed his controverting affidavit to these pleas in which he stated that the Merchants company had an agent in Lubbock County, Texas, and that the district court of said county had venue of the cause of action against said company by reason of subdivision 23 of article 1995, Vernon's Annotated Texas Civil Statutes.

In the controverting affidavit to the plea of privilege filed by the Sproles company the plaintiff sought to maintain venue in Lubbock County by virtue of subdivision 4 of said article.

On a hearing before the court each of the pleas of the defendants was denied and from this action this appeal is prosecuted.

The appellants assign as error the action of the court in overruling the plea of privilege of the Sproles company because the plaintiff had neither alleged nor proved that its co-defendant, the Merchants company, had its residence or principal place of business in Lubbock County, Texas.

The court found that each of the appellants was a corporation and that the Merchants company had an agent and representative in Lubbock County at the time the suit was filed; that plaintiff had a joint cause of action against the two companies and as he was entitled to maintain venue in Lubbock County against the Merchants company because it had an agent there, he was authorized to maintain suit against the Sproles company in said county.

Article 1995 provides that: "No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases."

One of the exceptions, subdivision 23, relied on by appellee to maintain the venue against the Merchants company in Lubbock County, so far as material to this appeal, is: "Suits against a private corporation * * * may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation * * * has an agency or representative, or in which its principal office is situated."

Under the facts and exception 23, the District Court of Lubbock County was authorized to maintain venue against the Merchants company had it been the only defendant but in order to hold the Sproles company in Lubbock County the appellee urged subdivision 4 of article 1995, which is, "If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * *"

The appellee, in order to maintain venue in Lubbock County, had the burden to specifically plead and prove the exceptions to the venue statute upon which he relied, but he failed to plead or prove that the Merchants company had its principal place of business in Lubbock County. It is apparently the settled law that the residence or domicile of a corporation, domestic or foreign, is where it maintains its principal place of business.

In Sanders v. Farmers' State Bank of Mexia et al., Tex.Civ.App., 228 S.W. 635, 636, it is said: "A corporation's residence, in legal contemplation, is the place where it maintains its office and transacts its business — its...