Milligan v. Southern Exp.
| Decision Date | 25 June 1952 |
| Docket Number | No. A-3630,A-3630 |
| Citation | 250 S.W.2d 194,151 Tex. 315 |
| Parties | MILLIGAN et al. v. SOUTHERN EXPRESS, Inc. |
| Court | Texas Supreme Court |
F. Neilson Rogers, Hubert Bookout and Joe G. Rollins, Sherman, for appellants.
Leachman, Matthews & Gardere, Dallas, for appellee.
The problem involved in the certified questions is whether a given contractual relationship between two domestic corporations makes one of them 'an agency or representative' of the other within the meaning of subdivision 23 of the venue statute, Art. 1995, Vernon's Tex.Civ.Stats.Ann. which we quote (with the pertinent provision italicized) as follows:
The defendant, Southern Express, Inc., a motor freight carrier, with its principal office in Dallas County, was sued in Grayson County, where the plaintiffs reside, for damages arising from an automobile-truck collision occurring in Dallas County. The alleged agent in Grayson County is another motor carrier corporation, Northeast Texas Motor Lines, which there performed services for the defendant corporation under a written contract. The trial court sustained the plea of privilege, but the tentative opinion of the Dallas Court of Civil Appeals, Bond, C. J., dissenting, holds an agency to exist and thus maintains venue in Grayson County.
With the single exception hereinafter mentioned, the parties concede the controlling facts to have been conclusively established by testimony or otherwise as reflected in the following excerpt from the opinion below (the 'appellant' therein being, of course, the plaintiffs, and the 'appellee' the defendant corporation (246 S.W.2d 662, 663)):
'Only two witnesses testified, both for appellant. The first witness, G. V. Snowden, a former employee of Northeast Texas Motor Lines, testified in substance, material here, that in connection with his employment with Northeast Texas Motor Lines he performed duties for appellee as follows: He accepted orders for the hauling of freight, picked up and delivered freight, collected money, made charges for services rendered by Southern Express, Inc.; that his Company audited and inspected Southern Express, Inc. books, and Southern Express, Inc., inspected the books kept by him for Southern Express; that he entered into oral contracts for the removal of freight into and out of Grayson County for Southern Express, and Southern Express had control over him as to how he handled freight; he quoted rates to prospective customers of Southern Express.
'Loren Mangrum testified in substance, material here, that he was district manager for Northeast Texas Motor Lines and assumed the duties of witness Snowden when Snowden quit his position; that his office accepted orders from customers for freight in the name of Southern Express, but that the freight was picked up by Northeast Texas Motor Lines through contract they held with Southern Express for that purpose; that if someone called up and had freight for Southern Express, they had authority to accept that order for Southern Express and to bill that person for Southern Express; also to pick up and deliver freight for Southern Express, and to collect money and collect charges for Southern Express. He is directly responsible to Northeast Texas Motor Lines, and Northeast Texas Motor Lines is in turn responsible to Southern Express. Southern Express had authority to tell them how to keep the books, and have presented rules for their keeping. There has always been another agent (at Denison) in Grayson County for Southern Express; Southern Express, Inc., is a common carrier and operates trucks daily into and through Grayson County, Texas.
'It was undisputed that appellants reside in Grayson County, Texas.
'Southern Express introduced their contract with Northeast Texas Motor Lines, which after reciting it was a common carrier of freight by motor vehicle desirous of contracting for depot facilities and a pick-up and delivery service, in substance provided that Southern Express agreed to pay Northeast Texas Motor Lines ten cents per cwt., with modification for amounts over 10,000 lbs.; and Southern Express was to pay B. T. Brown $15 per month for dock space and also monthly phone bill, but no long distance calls; Telephone 565 C.O.D. cards to be made when deliveries are made; all money collected to be reported and remitted each week to 3131 Oakland Street, Dallas, Texas, with copy to Paris office of Northeast Texas Motor Lines; freight on hand to be reported on Form FA-24; Northeast Texas Motor Lines to use forms furnished by Southern Express, Inc.
'The contract also contains the following provisions: '(11) It is the intention of the parties by this agreement that their relationship shall be that of independent contractor and contractee that in the event any claims or suits are made or filed against the Company arising out of the operation of said depot or said pick-up and delivery service, or the performance of this contract. Contractor agrees to defend the Company against such claims and suits, and to hold the Company harmless for all loss and costs, damage, expense, and liability in connection therewith."
For reasons not necessary to mention, the reference in the foregoing quotation to 'another agent' of the defendant-appellee at Denison, is admittedly to be disregarded.
The questions certified are:
For all the law dealing for one purpose or another with the topic of agency vel non, the present case appears to be the first in which this court has had to consider the subject as related to the venue provision in question. And while the phrase 'agency or representative' or a very similar one also occurs elsewhere in Art. 1995, to wit, in subdivisions 9 ('Crime or trespass'), 24 ('Carriers'), 25 ('Railway personal injuries'), and 27 ('Foreign corporations'), we have apparently considered it very seldom in those connections.
In subdiv. 9, no doubt the context, '* * * whether committed by the defendant or by his agent or representative,' rather restricts the meaning to a party, for whose conduct the defendant would normally be responsible under the doctrine of respondeat superior; but this would not necessarily entail a similar meaning, where the contextual reference is not to the tortious action of, but rather the regular presence of, the 'agent' in the county concerned. It is also noted that, while the word 'agency' is used in subdiv. 23 and in one place in 27, the word 'agent' is also used in 27, and is used to the exclusion of 'agency' in 24 and 25.
Dealing with the 1885 statute, which used the expression 'agency or representative' in connection with venue of actions against foreign corporations, we said in Bradstreet Co. v. Gill, 1888, 72 Tex. 115, 9 S.W. 753, 754, 2 L.R.A. 405 that
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...as used in the former venue statutes are not to be interpreted in light of the law of respondeat superior. Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, 197 (1952). Rather, as we held in Ruiz, "venue against a corporation may be predicated upon the presence in a county o......
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...in which ... the company may have an agency or representative...." We considered a similar provision in Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194 (1952). In that case the issue was whether a motor carrier corporation could be sued in a county in which it conducted bus......
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...resides in the county, the one instance being that of 'agency' and the other of 'representative'.' Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, at page 198. There can be no doubt that the same meaning is applicable to Sub. 27. In either case the appellees have met the P......
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...Co. v. Ward, supra, 145 S.W.2d 650, 654, 655. The kind of reasoning employed by the Supreme Court of Texas in Milligan v. Southern Express, 1952, 151 Tex. 315, 250 S.W.2d 194, on the existence of agency relationship for venue purposes is applicable here. It was pointed out that the responde......