Moreland v. Hawley Independent School Dist.

• Decision Date: 14 January 1943
• Docket Number: No. 2268.,2268.
• Citation: 169 S.W.2d 227
• Parties: MORELAND v. HAWLEY INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

169 S.W.2d 227

MORELAND v. HAWLEY INDEPENDENT SCHOOL DIST.

No. 2268.

Court of Civil Appeals of Texas. Eastland.

January 14, 1943.

Appeal from Jones County Court; Gilbert Smith, Judge.

Questions proposed to the Supreme Court by the Court of Civil Appeals of Eastland. Supplementing the original opinion.

For original opinion, see 163 S.W.2d 892.

McMahon, Springer & Smart, of Abilene, for appellant.

Wiley L. Caffey, of Abilene, for appellee.

FUNDERBURK, Justice.

At a former term this court handed down its opinion in this cause affirming the judgment of the court below, which had overruled a plea of privilege of H. J. Moreland, 163 S.W.2d 892. During that term, on June 26, 1942, Moreland's motion for rehearing was overruled, as was also a motion to certify a particular question to the Supreme Court. Said term ended on or about October 3, 1942.

Thereafter, on December 16, 1942, the Supreme Court, having previously sustained a motion of Moreland for leave to file a petition for mandamus, rendered its decision granting the petition for mandamus and commanding this court—subject to a stated alternative—to certify to the Supreme Court the same question we had been requested by Moreland to certify, Moreland v. Leslie, Tex.Sup., 166 S.W.2d 902. The alternative was that we conform the decision of this court to the decision of the Supreme Court. The question which we were requested by Moreland to certify and which the Supreme Court, subject to said alternative, has commanded us to certify, is, as stated in Judge Brewster's opinion (Moreland v. Leslie, supra), as follows: "In order to hold venue under subdivisions 9 and 29a of Article 1995 * * * where suit is brought against two persons for joint and several judgment for damages on the theory that a trespass has been committed, is it necessary for plaintiff to allege in his controverting affidavit and prove on the hearing that the person alleged to be the agent of the other is in fact the agent and acting within the scope of his authority?"

We overruled Moreland's motion to certify said question for the reason, possibly among others, that as to that question we followed unanimously the decision of the Supreme Court, by Judge Brewster, in Brown Express, Inc. v. Arnold, 138 Tex. 70, 157 S.W.2d 138. The opinion after setting forth the holding upon said question in the Brown Express case said : "Under this authority, and the state of the evidence as before recited, there is no escape from the conclusion that there was no evidence to sustain venue under exception 9 in Jones county as to H. J. Moreland." The writer, it is true, criticized the decision of the question in the Brown Express case, but said: "I am forced to recognize that this court is bound by the decision in the Brown Express case. Though that decision be binding, I am taking the liberty of criticizing it." Thus unanimously did the opinion and judgment of this court in all respects conform to the decision of the Supreme Court as respects the very question we have been commanded to certify. Under like circumstances, leave to file a petition for mandamus was denied in Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276. That motion for leave was denied for the reason, as stated by the court, that "this court [the Supreme Court], as recently stated in Ætna Life Insurance Company v. Gallagher , 94 S.W.2d 410, will not require the certification of a question which it has already decided, unless the decision of the Court of Civil Appeals on that question is contrary to the Supreme Court's decision thereon. The decision of the Court of Civil Appeals being in harmony with the decision of this court in the Conley case [Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183], supra, the motion for leave to file will be denied." The question here naturally suggests itself why the same order was not made upon the motion of Moreland for leave to file his petition in Moreland v. Leslie, supra.

The Supreme Court quite evidently misunderstood our opinion in this case. Judge Brewster's opinion says: "Under those facts [that is, the facts under which we held there was no evidence to sustain venue as to Moreland under exception 9], the opinion of the Court of Civil Appeals is in direct conflict with its own prior unanimous decision in Longhorn Drilling Corporation v. Padilla, 138 S.W.2d 164, 166," etc. There was no conflict between the unanimous decision in the Longhorn case and this case or between either of them and the Brown Express case. As said before, the writer criticized but expressly recognized the binding effect of the Brown Express decision. As respects the particular question, nothing said in the entire opinion imports any questioning by the writer's associates of the soundness of the Brown Express decision. Certain indication of a misunderstanding of some sort is apparent from the nature of the alternative upon which mandamus would not issue, namely, if this court "conforms its decision" to that of the Supreme Court. Upon the question, this court is commanded to certify, the decision of this court was already in conformity to the decision of the Supreme Court.

Under the circumstances we find ourselves involved in doubt as to the proper action to be taken. We cannot avoid the obligation to certify, by changing our decision upon the question we are commanded to certify, since to change it would produce a conflict not otherwise existing. Quite obviously a decision cannot be made to conform to decisions with which it is already in conformity. On the other hand, if by inaction we do not avail ourselves of the prescribed alternative and the Supreme Court does not change its order, our duty appears to be to do the apparently futile thing of certifying the question. This situation is complicated by other factors.

Did the mere filing of a motion in the Supreme Court requesting leave for Moreland to file his petition for mandamus have the effect of preventing the finality of our judgment with the close of the term? Does this court still have authority to change or set aside the judgment?

Further, the Supreme Court's opinion indicates views contrary to the holding of the majority of this court upon one or more questions other than the one we were requested to certify and have been commanded to certify. These questions alone, it is to be seen, constituted the basis for the judgment of affirmance. Since, however, all that was said in the opinion of the Supreme Court relating to such questions was in terms directed to the very different and disconnected question which we regarded as having been already decided by the Supreme Court and followed, it would appear to be advisable that the Supreme Court's views if not affected by that fact be expressed directly with reference to a proper statement of the really controlling questions.

The question, the decision of which determined the judgment of this court in this case, and upon which there was a majority and minority opinion, may be stated simply and concretely thus: In a suit against at least two defendants to recover of them jointly damages for a tort, neither defendant being a resident of the county in which the suit is brought, if the venue as to one of the defendants is authorized under exception 9 to the general rule of venue (R.S.1925, Art. 1995), because such defendant committed a trespass in such county, upon which the suit is based, is the other defendant, who by the suit is sought to be adjudged liable only in accordance with the doctrine, principle or maxim of respondeat superior, a necessary party to the suit within the provisions of exception 29a to said general rule of venue? The decision of that question, involving the decision of the incidental question of the manner of making proof that a party is a necessary party, alone resulted in an affirmance of the judgment. No request was made for a certification of either of said two questions. The decision in Moreland v. Leslie, supra, embraces no command that we certify either of said questions.

As an original proposition, unaffected by decisions of the Supreme Court, all the members of this court were unanimous in the view that said first question should be answered in the negative, or stated in terms of its application to this case, that Moreland was not a necessary party. We were unanimous in the view that the Supreme Court in Commonwealth Bank & Trust Co. v. Heid Brothers, 122 Tex. 56, 52 S.W.2d 74, and Pioneer Building & Loan Association v. Gray, 132 Tex. 509, 125 S.W.2d 284; Id., Tex.Civ.App., 126 S.W.2d 995, had decided the same question to the contrary or in the affirmative. The writer's only disagreement was as to the authoritativeness of said decisions in view of other decisions believed to be, in principle at least, in conflict therewith. Was the conclusion wrong that according to said two decisions of the Supreme Court Moreland was a necessary party to the suit within the meaning of that term as employed in said exception 29a?

In the first case, which for brevity shall be referred to as the Heid Brothers case, the Supreme Court, answering a certified question, held that in a suit against Marley and Heid Brothers to establish against them a joint liability to pay a particular indebtedness, Heid Brothers was a necessary party to the suit under exception 29a. Said the court [122 Tex. 56, 52 S.W.2d 75]: "We presume that the bank [plaintiff] is here asserting all of its rights by seeking both a joint and a several judgment. Such being the case, the bank is entitled to the complete relief sought; that is, it is entitled to a joint judgment against the two defendants, as well as a several judgment against each of them. Of course, a joint judgment could not be rendered against both defendants unless they are both made parties defendant in the same action. It follows that Heid Bros. is both a proper and a necessary party to this suit." (Italics ours.) In the very recent case of Tarrant...