Mims v. Bohn

• Decision Date: 11 March 1976
• Docket Number: No. 18761,18761
• Citation: 536 S.W.2d 568
• Parties: Staley W. MIMS et al., Appellants, v. Wilford J. BOHN, Appellee.
• Court: Texas Court of Appeals

Page 568

536 S.W.2d 568

Staley W. MIMS et al., Appellants, v. Wilford J. BOHN, Appellee.

No. 18761.

Court of Civil Appeals of Texas Dallas.

March 11, 1976.

Rehearing Denied April 8, 1976.

John C. Biggers, Rick W. Hightower, Biggers, Lloyd, Biggers, Beasley & Amerine, Dallas, for appellants.

Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.

AKIN, Justice.

This is an appeal from an order overruling defendants' pleas of privilege. Plaintiff seeks to sustain venue in Dallas County under Tex.Rev.Civ.Stat.Ann. art. 1995(4) (Vernon 1964).

The principal question is whether plaintiff introduced sufficient evidence to support a finding of a civil conspiracy to deprive plaintiff of certain stock and cash dividends against defendants Southland Life insurance Company and Southland Financial Corporation, the Dallas County residents.

Wilford J. Bohn sued his former wife Carolyn Mims Bohn, her parents, Staley W. Mims and Oralie Mims, and the two Southland companies for damages in Dallas County alleging that the defendants conspired to wrongfully deprive him of his Southland Financial Corporation stock and the accrued cash dividends on this stock. In the same suit, plaintiff sued his ex-wife, as principal, and Travelers Indemnity Company, as surety, on a bond naming plaintiff as payee for damages resulting from the alleged wrongful issuance of an injunction enjoining defendants Southland Financial Corporation and Southland Life Insurance Company from delivering to plaintiff the stock and accrued dividends held by defendants Southland. The injunction was obtained ancillary to an action for a bill of review seeking to set aside the final judgment awarding the stock to plaintiff. This action was also alleged to be in furtherance of the conspiracy to deprive plaintiff of the use of his Southland stock. The defendants Mrs. Bohn and Mr. and Mrs. Mims each filed a plea of privilege to be sued in Houston County. These pleas were controverted by plaintiff who alleged that they were co-conspirators and, therefore, proper parties. After hearing, the trial court entered its order overruling the pleas of privilege and sustaining venue in Dallas County. Defendants Mr. and Mrs. Mims and Mrs. Bohn appeal. We affirm.

Article 1995(4) provides: 'If two or more defendants reside in different counties, suit may be brought in Any county where one of the defendants resides.' (Emphasis added.) In addition to proving that one defendant is a resident in the county of suit, Texas courts have engrafted two additional requirements, which are: (1) Plaintiff must allege a joint cause of action against the resident and nonresident defendants or a cause of action so intimately connected with the action proved against the resident defendant that joinder is proper to avoid multiplicity of suits; and (2) plaintiff must introduce evidence at the venue hearing to establish a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Houston Sash & Door Co. v. Davidson, 509 S.W.2d 690, 692--93 (Tex.Civ.App.--Beaumont 1974, writ ref'd n.r.e.). Since it was stipulated that Southland Life Insurance Company, Southland Financial Corporation, and Travelers Indemnity Company are Dallas County residents and since defendants Mrs. Bohn and the Mims are proper parties ¹ to the alleged civil conspiracy against plaintiff, the only question for determination is whether plaintiff proved by a preponderance of the evidence a cause of action for civil conspiracy against the resident defendants Southland. Since Southland Life insurance is a wholly-owned subsidiary of Southland Financial Corporation, we consider them as one entity for the purpose of this appeal and will refer to them collectively as 'Southland.' Consequently, to prove a conspiracy for venue purposes under subdivision (4), plaintiff must also prove that at least one of the appellants conspired with Southland.

A civil conspiracy is 'a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.' Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964). All conspirators are jointly and severally liable for wrongful acts done in furtherance of the conspiracy. State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (1937). This is true even though one of the conspirators enters into the conspiracy at a later time. Id. at 560. In International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567, 581 (Tex.1963), the Supreme Court quotes from Jernigan v. Wainer, 12 Tex. 189, 193 (1854):

When men enter into conspiracies, they are not likely to call in a witness . . . In such cases the injured party must necessarily have recourse to circumstantial evidence. For it is only By the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses. (Emphasis added.)

The Holloway court also quotes Whitmore v. Allen, 33 Tex. 355, 357 (1870): 'A conspiracy may be proven as well by the Acts of the conspirators, as by anything they may say, touching what they intended to do.' (Emphasis added.) A conspiracy may be established, therefore, by proof which shows a concert of action or other facts and circumstances from which the natural inference arises that the wrongful, overt acts were committed in furtherance of a common design, intention, or purpose of the conspirators. Texas Public Utilities Corp. v. Edwards, 99 S.W.2d 420 (Tex.Civ.App.--Austin 1936, writ dism'd).

Since appellants attack the order of the trial court on no evidence and insufficient evidence points, we review the evidence indulging every reasonable inference in favor of the trial court's order. E.g., James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

Prior to his marriage to defendant Carolyn Bohn, plaintiff owned no Southland stock. All Southland stock, except 86 shares given to plaintiff by defendants Mr. and Mrs. Mims, were gifts to Carolyn Bohn by her grandmother and by her parents, Mr. and Mrs. Mims. Carolyn Mims Bohn gave the stock to him before he filed for divorce on July 5, 1966.

In October 1966, while the divorce suit, was pending, defendant Mr. Mims, in the presence of defendants Mrs. Mims and Mrs. Bohn, told plaintiff that he would never receive one penny of the money represented by the Southland stock and that 'they' would do whatever was necessary to prevent plaintiff from obtaining the stock. In addition, Mr. Mims engaged during the protracted divorce litigation in placing as much financial pressure on plaintiff as possible. For example, on October 20, 1972, Mims advised plaintiff that he had purchased plaintiff's note in the amount of $11,340 payable to the Franklin Bank of Houston, Texas, and demanded payment in full of the note. This note had been executed by plaintiff to secure funds to continue making payments on real estate owned by the parties to the divorce action. Furthermore, Mims attempted to foreclose on 216 acres of land in Houston County and posted the property for sale. Plaintiff was compelled to pay $696 to Mims to prevent foreclosure. Moreover, plaintiff had attempted to sell this 216 acres but was unable to do so because of threats made by defendants Mims and Bohn.

The litigation between plaintiff and his former wife included three jury trials, ² in all of which defendant Staley Mims appealed as a witness for his daughter regarding ownership of the Southland stock. In December 1967, after the first judgment awarding the stock to plaintiff, Mrs. Bohn's attorney notified Southland that Mrs. Bohn was claiming title to all Southland Life Insurance Company stock standing in the name of Wilford J. Bohn except a few shares given Mr. Bohn by Staley W. Mims and wife Oralie B. Mims.

Prior to this notification plaintiff had been receiving periodic cash dividends. In February 1968, plaintiff made demand by letter upon defendant Southland for payment of certain withheld dividends and 575 shares of Southland Life stock, representing stock dividends on the stock standing in plaintiff's name. Southland refused to issue these stock dividends to plaintiff. After receiving this latter, Southland notified plaintiff in January 1968 that it would not deliver cash and stock dividends that accrued in January 1968.

On January 3, 1972, a second letter was written by defendants' ³ attorney calling Southland's attention to the fact that in the corporate reorganization Southland Life Insurance stock would be exchanged for stock in Southland Financial Corporation and that holders of Southland Life Insurance stock were to surrender their Southland Life Insurance Company stock for two shares of Southland Financial Corporation for each share of Southland Life surrendered. Again defendants' attorney made claim for Mrs. Bohn to the stock standing in the name of plaintiff 'except a few shares given Mr. Bohn by Staley W. Mims and wife, Oralie B. Mims.' This letter also states: 'You are given this notice in order that Mrs. Bohn's rights may be protected, and so that you may take the steps necessary to protect yourselves.'

By letter of January 7, 1972, plaintiff delivered all of his shares of the Southland Life Insurance Company to be exchanged in accordance with the reorganization agreement. Plaintiff instructed Southland to deliver his new certificates to him personally or by certified mail and again made demand that the certificate representing 575 shares previously withheld by Southland Life Insurance Company be delivered to him. In this letter he advised defendant Southland that refusal to deliver the certificate 'may well be and probably is conversion and would subject Southland Life Insurance Co. to liability and damages, is without basis at law, and is over my strongest protests.' He continued: 'I have advised,...