Petroleum Producers Co. v. Steffens, 2139.

• Decision Date: 09 May 1941
• Docket Number: No. 2139.,2139.
• Citation: 157 S.W.2d 1003
• Parties: PETROLEUM PRODUCERS CO. v. STEFFENS et al.
• Court: Texas Court of Appeals

157 S.W.2d 1003

PETROLEUM PRODUCERS CO. v. STEFFENS et al.

No. 2139.

Court of Civil Appeals of Texas. Eastland.

May 9, 1941.

Rehearing Denied June 20, 1941.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit by W. Lon Steffens and others against the Petroleum Producers Company, for damages for failure to drill oil wells. From a judgment overruling defendant's plea of privilege to be sued in county of its residence, defendant appeals.

Reversed and remanded.

Kilgore & Rogers, of Wichita Falls, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellees.

FUNDERBURK, Justice.

W. Lon Steffens, and others, brought this suit, in Jones County, against Petroleum Producers Company, a private corporation, seeking to recover damages in the total sum of $5,000, for alleged failure of the defendant to drill an offset oil well on a 40-acre lease owned by it in Jones County; and failure to drill four additional wells upon said lease. Plaintiffs were the lessors in said lease. Four producing oil wells were alleged to have been drilled on the lease. It was alleged that there were producing wells on leases adjoining the one in question and within the customary offset distance therefrom. There were allegations to the general effect that there was drilling room on the lease for four other wells which defendant was, in the exercise of ordinary care, required to drill. It is deemed unnecessary to make further statement as to the nature of the suit.

The defendant duly filed a plea of privilege to be sued in Wichita County, the county of its residence. Such plea was answered by a controverting plea of plaintiffs seeking to maintain venue in Jones County under R.S.1925, Art. 1995, exceptions numbered 5 and 23, Vernon's Ann. Civ.St. art. 1995, subds. 5, 23.

Upon hearing, the trial court overruled the plea of privilege, from which action defendant prosecutes appeal to this court.

The appellant contends, as its first ground of error, that appellees did not discharge their burden of proving the venue facts under subdivision 23 of Art. 1995, there being no testimony that a cause of action, or a part thereof, either existed, or existing, arose in Jones County, Texas, in that there was no proof of offset production. It seems to be true that there was no effort to prove and, therefore, of course, no proof of any offset production. In the absence of such fact, we fail to see how there could exist any cause of action to recover damages for breach of the alleged duty to drill an offset well. The question to be determined, therefore, seems to resolve itself into this: Under the provision of exception 23 to the general rule of venue, as such general rule and the several exceptions thereto are provided in R.S.1925, Art. 1995; namely, the provision that "suits against a private corporation * * * may be brought in any county in which the cause of action, or a part thereof, arose", does the proof necessary to show that the cause of action, or a part thereof, arose in the particular county include proof of every element of the cause of action alleged? In our opinion, except as this question may be complicated by the decision in Farmers' Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S. W.2d 675, hereinafter considered, an affirmative answer to said question is so certainly required by the decisions that it is deemed sufficient only to cite some of them as follows: Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Texas Coca Cola Bottling Co. v. Kubena, Tex.Civ.App., 90 S.W.2d 605; Associated Seeds Co. v. Scholtz, Tex.Civ.App., 111 S.W.2d 777; Ramey v. Cage, Tex.Civ.App., 90 S.W.2d 626; Blanton v. Garrett, Tex.Civ.App., 124 S.W.2d 451; A. H. Belo Corp. v. Blanton, Tex.Civ.App., 126 S.W.2d 1015; Longhorn Drilling Co. v. Padilla, Tex.Civ. App., 138 S.W.2d 164; Carl Hill v. Uvalde Const. Co., Tex.Civ.App., 151 S.W.2d 283.

In Farmers' Seed & Gin Co. v. Brooks, supra [125 Tex. 234, 81 S.W.2d 677], the first of two questions certified was as follows: "The pleadings and the testimony being sufficient to show that the defendant, at the time of entering the contract with the plaintiff, and at the time of the shipment and delivery of the cottonseed, was a corporation, and that the cause of action, if any, arose, in part at least, in Dawson County, Texas, was it necessary in the trial on the plea of privilege for the plaintiff to go further under exception 23 and prove the elements of the lawsuit entitling him to a recovery, including the damages claimed to accrue to him from the alleged breach of the contract?" The court having first answered the second question to the effect that in the trial of a plea of privilege under exception 5 it is not necessary to prove a breach of the contract, (it being held sufficient to prove that the defendant had contracted in writing to perform the obligation sued on in the county where suit was brought) answered said first question as follows: "The answer to the second question in effect answers the first. It is stated in the question certified that the testimony on the hearing was sufficient to show that defendant, at the time the contract was made, and at the time of shipment and delivery, was a corporation; and that the cause of action, if any, arose in part in Dawson county. It is not contended that the contract was not made. The denial is that it was made performable in Dawson county; also that it was breached. It having been shown that the issue of breach is not pertinent on the plea of privilege hearing, only the question as to whether the cause of action `in part' arose in Dawson county remains to be determined in order to ascertain whether venue arose in that county under exception 23. If the alleged cause of action had not been upon a contract in writing performable in a particular county, another question would be presented. It appearing from the certificate that the cause of action upon the contract arose `in part' in Dawson county, the first question is answered in the negative." (Italics ours.)

At the time this court certified said two questions in the Brooks case we entertained no such idea as that evidence required to prove that a cause of action arose in whole or in part in a particular county, within the meaning of said exception 23, included as an essential part thereof, evidence of every element of such cause of action. We then entertained the view, in common with all other courts so far as we know, that proof of the fact that a contract was made, or was breached, in a particular county was, in a suit against a private corporation upon such contract, sufficient proof that the cause of action, in part at least, arose in that county. In question number one we stated as a fact "The pleadings and testimony being sufficient to show * * * [among other things] that the cause of action, if any, arose, in part at least, in Dawson County, Texas" etc. The question asked was not whether it was necessary to prove a cause of action as part of the required proof that such cause of action arose, in part at least, in the county where the suit was brought. The question certified was, in effect, whether in addition to the fact that the cause of action arose, in part at least, in Dawson County, it was necessary "to go further under exception 23 and prove the elements of the lawsuit entitling him to a recovery, including the damages claimed to accrue to him from the alleged breach of the contract." The Supreme Court, it would seem, so understood the question, as shown by the following "The first question inquires whether it was necessary in the trial on the plea of privilege for plaintiff, in order to maintain venue in Dawson county under exception 23, after showing the cause of action in part arose there, to go further and prove the elements of the lawsuit entitling him to a recovery, including the element of damages." (Italics ours.) This statement of the question seems to show that it was understood in such way as that no importance was attached to the qualifying words "if any" in the question. Such understanding of the question is further shown by the last sentence of the opinion as follows: "It appearing from the certificate that the cause of action upon the contract arose `in part' in Dawson county, the first question is answered in the negative." (Italics ours.)

We cannot be sure we understand the meaning of all the court said in its answer to the said first question. For example, we are unable to see how it was thought to be true that the "answer to the second question in effect answers the first." In answer to the second question the court had, in substance and effect and very clearly, said that in order to maintain venue under exception 5, the venue issued was "whether defendant had `contracted in writing to perform' its obligation in Dawson county"; and that whether such contract was breached was not a venue fact. Exception 5, by its very terms, is limited, in its possible application, to cases wherein is involved an obligation of a written contract providing for performance in a particular county. Exception 23 may have application to any suit against a private corporation if the cause of action, or a part thereof, arose in the county where the suit is brought. Exception 23 makes no distinction between suits based on contract and suits based upon tort. The court did not mean, of course, to say that regardless of the cause of action involved when exception 5 is applicable exception 23 is also applicable, or vice versa. It would be equally unreasonable, we think, to ascribe to the court the intention to hold that the place of performance of a written contract, considered alone, would be material to the venue of any suit under exception 23. Quite obviously, the fact that a written contract provides that an obligation thereby imposed upon one of the parties is to be...