National Transfer & Rigging Co. v. Clark

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRAVES
• Citation: National Transfer & Rigging Co. v. Clark, 249 S.W.2d 630 (Tex. Ct. App. 1952)
• Decision Date: 01 May 1952
• Docket Number: No. 12399,12399
• Parties: NATIONAL TRANSFER & RIGGINS CO. Inc. v. CLARK.

Page 630

249 S.W.2d 630

NATIONAL TRANSFER & RIGGINS CO. Inc. v. CLARK.

No. 12399.

Court of Civil Appeals of Texas, Galveston.

May 1, 1952.

Rehearing Denied June 12, 1952.

Berry, Richards & Baker, T. E. Richards, Jr., of Houston, for appellant.

Lewis Dickson, Bennett Lay, of Houston, for appellee.

GRAVES, Justice.

This appeal is from a $2,328.96-judgment of the 113th District Court of Harris County, Texas, in favor of the appellee, and against the appellant, entered in response to a jury's verdict on special issues submitted by the court to it, as for damage done to the appellee's 18 LeBlond lathe, by the negligence of an employee of appellant, in removing one of the skids from beneath it, causing it to fall.

To make plain the holding to follow, it is deemed helpful at this stage to copy from the appellee's brief this much of the nature and result of the suit below, which, upon examination of the record, is deemed to be substantially correct:

'Appellee (Plaintiff below) filed suit on April 18, 1949, against National Transfer Company, as a corporation, for damages sustained on September 25, 1948, to appellee's lathe. Citation on such petition was issued on April 19, 1949, against 'National Transfer Company, a corporation, doing business under the laws of the State of Texas, with offices at 2312 Congress Street, where service may be had upon A. Freedman, its President.' * * * The Sheriff's Return on such citation shows it to have been served 'by summoning the National Transfer Company, a corporation, by delivering to A. Freedman in person, President of the said National Transfer Company, a true copy of this writ, etc.' * * *.

'On May 16, 1949, the Appellant, through its attorneys, Berry & Richards, timely filed an answer to Appellee's original Petition, averring in such answer 'Now comes, National Transfer Company, a Texas Corporation, Defendant in the above styled and numbered cause, etc.' * * * It is undisputed that Berry and Richards, attorneys for Appellant prior to the filing of suit, advised Mr. Lewis Dickson, attorney for Appellee, that National Transfer Company was a corporation, with A. Freedman as President. * * * At no time did Appellant file a plea-in-abatement, raising the issue of misnomer. On April 11, 1950, Appellant, still representing itself to be 'National Transfer Company, a Texas Corporation', filed through its attorneys, Berry, Richards and Baker, its First Amended Original Answer in this cause, * * * and on said date and in such name and status likewise filed a cross-action against a third party. On October 5, 1950, Appellee filed its First Amended Original Petition, complaining of National Transfer & Rigging Company, a corporation, with A. Freedman as President * * *, and delivered a copy thereof to Berry, Richards and Baker. In such amended petition, Appellee alleged that National Transfer & Rigging Company, a Texas corporation, was the successor to National Transfer Company, and had 'assumed all of the business, accounts, operations, powers, rights, asserts, and liabilities, of the said National Transfer Company' * * *; further alleging that when Appellee filed his original petition on the 18th day of April, 1949, 'the name of the corporation intended to be sued was National Transfer & Rigging Company' * * *. On October 23, 1950, National Transfer & Rigging Company, through its attorneys, Berry, Richards and Baker, filed an answer and cross-complaint to such amended petition * * *.

'The application for the charter of National Transfer & Rigging Company, which is in evidence as Plaintiff's exhibit No. 1, * * * is dated October 27, 1948, and shows in the corporation a total capital stock of $18,000.00, the amount of $17,800.00 of such total is shown to have been paid by 'transferring all asserts, liabilities and properties of the going concern known as National Transfer Company', * * *.

'Upon the trial, the jury found, in response to the special issues, that Appellee's lathe had been damaged on September 25, 1948, as the result of the negligence of Appellant in the amount of $2,328.96, and further found in response to special issues 9 and 10, * * * that, on or about October 27, 1948, National Transfer & Rigging Company, Inc., assumed the asserts and all liabilities of the proprietorship.'

On the appeal, Appellant attacks such judgment under some 16 points of error, which it briefs under four groups.

The boilded-down substance of these, together with the listed authorities cited therefor, was as follows:

'* * *, Appellant's position is, first, that a misnomer did not occur in this case, and, therefore, Appellee's cause of action against National Transfer & Rigging Company, inc. is barred by the two years Statute of Limitation, Vernon's Texas Civil Statutes 1948, Art. 5526, as the cause of action for damages (an unliquidated demand), if any, arose September 25, 1948, and Appellee did not sue National Transfer & Rigging Company, Inc. until he filed his First Amended Original Petition on October 5, 1950, and even then he did not make any effort towards securing process on Appellant, * * *, second, assuming a misnomer did occur, * * * then we still say National Transfer & Rigging Company, Inc. was not a party to the suit until Appellant waived service of citation and entered its appearance on October 23, 1950, in answer to the First Amended Original Petition of Appellee filed on October 5, 1950 and, therefore Appellee's cause of action, if any, against this Appellant is barred by the two years Statute of Limitation. Further, Appellee never lost his cause of action against Aaron Freedman, doing business as National Transfer Company, if any he ever had, and the record establishes the said ...