Oakland Motor Car Co. v. Jones

• Decision Date: 30 May 1930
• Docket Number: No. 705.,705.
• Citation: 29 S.W.2d 861
• Parties: OAKLAND MOTOR CAR CO. v. JONES.
• Court: Texas Court of Appeals

29 S.W.2d 861

OAKLAND MOTOR CAR CO. v. JONES.

No. 705.

Court of Civil Appeals of Texas. Eastland.

May 30, 1930.

Rehearing Denied June 27, 1930.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by Frank A. Jones against the Oakland Motor Car Company and G. J. Boyd, in which the defendant first named filed a plea of privilege. From the order overruling the plea the first-named defendant appeals.

Reversed and remanded, with instructions.

Turner, Rodgers & Winn, of Dallas, for appellant.

Owen & Owen, of Eastland, for appellee.

FUNDERBURK, J.

This is a suit by F. A. Jones, who resides in Eastland county, Tex., against Oakland Motor Car Company, a foreign corporation, with a permit to do business in Texas, and having a residence and domicile in Dallas county, Tex., and G. J. Boyd, "doing business under the name of Boyd Motor Company," who is alleged to reside in Eastland county, Tex. The pleadings are lengthy, but for the purpose of disposing of the questions presented on this appeal it may be said that the cause of action against Oakland Motor Car Company was for negligence of the latter in having manufactured for sale and offered for sale and sold a defective Pontiac automobile, and the nature of the cause of action against G. J. Boyd is best illustrated by the allegations that "the said G. J. Boyd knew of such defects and the dangerous condition of said automobile and carelessly and negligently sold same to this plaintiff and did not advise or warn this plaintiff of the damages and dangers that might result by reason of said defects."

The defendant, Oakland Motor Car Company, filed a plea of privilege in all respects substantially conforming to the requirements of R. S. 1925, art. 2007. The plaintiff filed a controverting plea, undertaking to set forth the claim that venue was properly laid in Eastland county upon the grounds (1) that said defendant was a nonresident of the state, and the suit having been filed in the county of plaintiff's residence, the venue was properly laid under subdivision 3 of article 1995; (2) that the joinder of said defendant in a suit against Boyd, a resident of Eastland county, properly fixed the venue in said county under subdivision 4 of said article; and (3) that the cause of action declared on, or a part thereof, arose in Eastland county, and venue was properly fixed under the provisions of subdivisions 23 and 27 of said article.

Upon a trial of the plea of privilege the court overruled the same, and, from the order overruling such plea, the defendant Oakland Motor Car Company has duly prosecuted this appeal.

Each of the several grounds relied upon to maintain venue in Eastland county and to support the judgment of the trial court in overruling the plea of privilege will be considered in order. It will also be necessary to make a more detailed statement of the facts relative to the second ground in connection with the discussion of that particular point.

Whether the venue was properly adjudged to be in Eastland county under subdivision 3 of article 1995, may be determined by the answer to the question, whether or not a foreign corporation, having a permit to do business in Texas, is necessarily one who resides without the state within the purview of said provision of the statute. In Taylor v. Wilson, 93 S. W. 109, 110, the Supreme Court regarded it as already settled that "`domicile' and `inhabitant' used in the first clause" of said article 1995 "mean, respectively, the same things as `residence' and `resident.'" In that case the Supreme Court held that, if the defendant had a residence in the state, he had the right to claim the benefits of the statute, even though he also had a residence without the state. The evidence was uncontroverted that defendant Oakland Motor Car Company had a place of residence in Dallas county, and, in so far as subdivision 3 provides to the contrary, had the undoubted right to have the venue changed to that county. Pittsburg Water Heater Co. v. Sullivan, 115 Tex. 417, 282 S. W. 576.

In considering whether the judgment overruling the plea of privilege may be sustained under subdivision 4 of article 1995, it is necessary to notice first the contention of appellant that said subdivision 4 has been repealed or superseded by subdivision 29a. It was so held in Citizens' National Bank v. Del Rio Bank (Tex. Civ. App.) 11 S.W.(2d) 242. Assuming that decision to be correct, the Austin Court of Civil Appeals in Sproles v. Schepps, 26 S.W.(2d) 922, has held that "necessary parties," within the meaning of subdivision 29a, is not to be construed as meaning technically necessary parties, but as meaning such parties as have heretofore been permitted to be joined in one suit to prevent a multiplicity of suits.

We find ourselves unable to agree with either decision. In our opinion, subdivision 29a was not intended to repeal or supersede subdivision 4. It does not purport to do so, and of course should not be held to do so if not necessarily inconsistent with the older statute. Prior to the enactment of subdivision 29a, subdivision 4 had long been held to permit the fixing of venue in a particular county by the joinder with a resident defendant of not only necessary parties but proper parties. The decisions recognizing that effect of said statute are too numerous to mention. It is believed that the true rule was stated in Richardson v. Cage, 113 Tex. 152, 252 S. W. 747, 748, which opinion was approved by the Supreme Court, wherein it was said: "In order that a party may be sued outside the county of his residence, the defendant who resides in the county where the suit is brought must be a proper [italics ours] or necessary party to the action," and that as to the cause of action it "must be a joint one; or at least * * * must grow out of the same transaction and be so intimately connected with the cause of action" against the non-resident defendant "that the two should be joined under the rule intended to avoid a multiplicity of suits."

The rule as thus stated suggests a further very interesting question, made so because of the conflict of opinion concerning it. That question is, whether, for a case to come within subdivision 4, it is necessary that the cause of action be the same as to all the defendants. In Fox v. Cone (Tex. Com. App.) 13 S.W.(2d) 65, 66, is the statement: "This subdivision [i. e. subdivision 4] applies only to where the cause of action as to all parties is the same." Similar expressions are to be found in a number of other cases, of which may be mentioned: McCauley v. McElroy (Tex. Civ. App.) 199 S. W. 317; Givens v. Carter (Tex. Civ. App.) 146 S. W. 623; India Tire, etc., Co. v. Murphy (Tex. Civ. App.) 6 S.W.(2d) 141; Danciger v. Smith (Tex. Civ. App.) 229 S. W. 909; Galveston Dry Goods Co. v. Mitchell (Tex. Civ. App.) 171 S. W. 279; Wilson v. Gass (Tex. Civ. App.) 260 S W. 282; Stephens v. First National Bank (Tex. Civ. App.) 146 S. W. 620.

But, in Cobb v. Barber, 92 Tex. 309, 47 S. W. 963, 964, there were involved different causes of action as to different defendants, and neither of the causes of action was the same against all the defendants. The Supreme Court, upon determining that the causes of action were such as properly could be joined in the same suit, held that the suit was rightly brought in the county of the residence of some of the defendants under subdivision 4. Based upon the conclusion that "our system does not favor the bringing of a multiplicity of suits and therefore permits all causes of action (italics ours) growing out of the same transaction to be joined," the court held that, "It is not the duty of a plaintiff to sue those who are proper, but not necessary, parties to it; but it is his right to do so. If rightfully defendants, the suit in a case of this character may be brought in any county in which either of the defendants resides." Cobb v. Barber, supra, has been followed right up to the present time. Bowers v. Bryant-Link Co. (Tex. Com. App.) 15 S.W.(2d) 598; Wool Growers' Central Storage Co. v. Edwards (Tex. Civ. App.) 10 S.W.(2d) 577; First State Bank v. Hill (Tex. Civ. App.) 2 S.W.(2d) 1023; People's State Bank v. National Bank of Commerce (Tex. Civ. App.) 267 S. W. 992; Alexander v. Alexander (Tex. Civ. App.) 265 S. W. 1072; Childress v. Brooks (Tex. Civ. App.) 265 S. W. 224; First State Bank v. Rice (Tex. Civ. App.) 251 S. W. 284; Scott v. Cassidy S. W. Comm. Co. (Tex. Civ. App.) 240 S. W. 1041; Waxahachie National Bank v. Sigmund Rothschild Co. (Tex. Civ. App.) 235 S. W. 633; White v. Alexander, 62 Tex. Civ. App. 512, 131 S. W. 437, 438; Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. W. 1121; Dublin Cotton Oil Co. v. Robinson (Tex. Civ App.) 50 S. W. 1054; Harper v. Winfield State Bank (Tex. Civ. App.) 173 S. W. 627.

An almost insuperable obstacle in the way of considering Fox v. Cone, supra, as expressing the purpose of the Supreme Court to overrule Cobb v. Barber, supra, and all the long line of cases following it, is to be found in the fact that, in that very case it is held that there were two different causes of action —one being for tort and the other upon contract, no one being against all the defendants, and yet that the suit as so brought could have been maintained in Refugio county against all of the defendants under the provision of subdivision 4. But we find it unnecessary to the determination of the questions presented on the present record to adopt either of the two lines of decisions to the rejection of the other. This because they all agree that, under some circumstances, subdivision 4 applies to proper, as well as necessary parties. For instance, if subdivision 4 is applicable alone to a case where the same cause of action is asserted against all the defendants, as held in Fox v. Cone, supra, it will none the less apply to proper parties, as where joint tort-feasors or persons severally as well as jointly liable are sued. That subdivision 4 applies...