Northern Texas Traction Co. v. Clark & Sweeton

• Decision Date: 20 April 1925
• Docket Number: (No. 3049.)
• Citation: 272 S.W. 564
• Parties: NORTHERN TEXAS TRACTION CO. v. CLARK & SWEETON et al.
• Court: Texas Court of Appeals

272 S.W. 564

NORTHERN TEXAS TRACTION CO. v. CLARK & SWEETON et al.

(No. 3049.)

Court of Civil Appeals of Texas. Texarkana.

April 20, 1925.

Rehearing Denied May 7, 1925.

Error from Hunt County Court; Ollie P. McWhirter, Judge.

Action by Clark & Sweeton against the Northern Texas Traction Company and others. Judgment for plaintiff, and the named defendant brings error. Reversed, with instructions.

Clark & Sweeton, attorneys residing in Hunt county, brought the suit in the county court of Hunt county against F. M. Williams and his wife, Lula L. Williams, residents of Hunt county, and the Northern Texas Traction Company, a corporation operating an electric railway extending from Dallas to Fort Worth, with principal office in Fort Worth in Tarrant county. The attorneys sought to recover, under an agreement with their client Williams, one-third of the amount of money which was accepted by the client as a full compromise settlement of a pending suit brought by the client, and transferred to the attorneys by an assignment. The transactions out of which the action grows are alleged in the petition substantially as here stated. On January 29, 1921, Mrs. Williams received serious personal injuries at a street crossing in the city of Fort Worth, due to the alleged negligence and carelessness of the operatives of the interurban car of the Northern Texas Traction Company. Afterwards, about June 8, 1921, Mrs. Williams, joined by her husband, employed the above mentioned attorneys, as a firm, and entered into a contract by which the attorneys were "to have a one-third" portion of whatever amount of money should be realized or received in a compromise settlement of the claim in case the same was made "without trial of the suit," or "to have a 40 per cent." portion of the amount of the judgment for damages "rendered on the trial of the suit." The attorneys first undertook to negotiate a settlement of the claim, but failed in their efforts to do so; and then, on July 15, 1921, the attorneys filed the suit for damages in Mr. and Mrs. Williams' name against the traction company in the district court of Dallas county. The case was prepared for trial by the attorneys, and it was set for trial, when reached on the assignment of the docket, for May 10, 1923. After setting out these facts, it is then alleged in the petition that:

"Between the 1st and 10th of May, 1923, the Northern Texas Traction Company fraudulently settled with F. M. Williams and wife, Lula L. Williams, said suit, without notice of any character, to, or without conferring with, said Clark & Sweeton; that said traction company, acting by and through its agents, and with full knowledge of the assignment and transfer by the defendants F. M. Williams and Lula L. Williams to plaintiffs of a portion of said cause of action, paid to said defendants F. M. Williams and Lula L. Williams the sum of $1,500, in settlement of said claim, and obtained their release therefor. Plaintiffs allege that by reason of the premises they are entitled to recover of and from the defendant, the Northern Texas Traction Company, the sum of $500, the same being one-third of the amount for which the said company compromised said suit or claim, and that they are entitled to recover of and from the defendants F. M. Williams and Lula L. Williams said sum of $500; that they have made demand upon each of the said defendants for said sum, which demand has been declined, said defendants refusing to pay said sum or any part thereof."

The prayer was for "judgment against the defendants jointly and severally for the sum of $500, together with 6 per cent. interest from May 1, 1923." The evidence supports the allegations that the Traction Company had notice of the assignment before the compromise, and that the compromise was made for the sum stated, and that the full sum was paid to Mr. and Mrs. Williams without knowledge or consent of Clark & Sweeton.

The Traction Company filed a plea of privilege, which was controverted by the plaintiffs in the suit, to be sued in Tarrant county, the place of principal office. The Traction Company's railway, as alleged and not shown by the evidence to be otherwise, does not run through Hunt county, and it had no office or agent in that county. The court, after a hearing, overruled the plea of privilege, and the Traction Company excepted to the ruling. The case then proceeded to trial on the merits, resulting in a judgment in favor of the attorneys for the amount sued for against all the defendants in that suit. The evidence sustains the court's findings and judgment in respect to liability as to the Traction Company. The Traction Company has appealed to have the judgment against it reviewed, more especially predicating error upon the overruling of the plea of privilege to be sued in the county of its domicile.

Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.

Clark & Sweeton, of Greenville, and Merritt & Leddy, of Dallas, for defendants in error.

LEVY, J. (after stating the facts as above).

The result of the appeal depends, we conclude, upon the one point of whether or not the plea of privilege of the Traction Company to be sued in the county of its principal office should have been sustained. And the decision of the question entirely depends upon whether or not it appears from the face of the petition that there is an improper joinder of defendants in the action. For subdivision 4 of article 1830, Rev. Stat., expressly provides that where there are two or more defendants residing in different counties, the suit may be brought in any county where any one of the defendants resides. In case, therefore, that the Williamses, residents of Hunt county, were necessary or proper parties to the cause of action as it appears from the face of the petition, the plea was properly overruled; otherwise, the plea should have been sustained.

It is a primary law, in determining the joinder of defendants, that the contractual obligation sued on, as defined by law, is in its nature joint or several, or joint and several. If the obligation, as defined by law, is several, in all such cases the plaintiff's claim, if any, against each defendant is in the nature of a separate claim, and no joinder of defendants is permitted; for there is no entirety of obligation as against the several defendants. "It is not sufficient," quoting from Danciger v. Smith (Tex. Civ. App.) 229 S. W. 909, "as contended by appellants, to show a valid cause of action against each defendant, or to show a liability in the alternative. The rule is that: `Causes of action brought upon different contracts cannot be joined unless each affects all of the defendants alike, and it is not sufficient to authorize a joinder that the several contracts of the different defendants relate to the same subject-matter.' If there is not a joint liability, the statutory rule that where two or more defendants reside in different counties, suit may be brought in any county where any of the defendants reside, does not apply, and, in such case, it is error to permit the plaintiff to prosecute his separate causes of action against all of the defendants as if same were joint."

As these fundamental rules must be applied in each case according to the action pleaded, it becomes necessary to consider the particular petition in this case and give it proper legal effect. While the prayer of the petition was for "judgment against the defendants jointly and severally," the language of the prayer would not be conclusive that the obligation sued on was joint and several, if the facts alleged do not have that legal effect attaching to them. The petition first sets out facts showing personal injuries suffered by Mrs. Williams through the negligence of the traction company, and the contract of employment of the attorneys by which they were to have one-third of any sum of money realized or received as a compromise of the claim without trial, or 40 per cent. of the amount of the judgment rendered in the trial of the case. The suit was filed in court, prepared and set for trial on May 10, 1923. The petition then sets up "that the defendant, Northern...