Pittsburg Water Heater Co. v. Sullivan

• Decision Date: 20 April 1926
• Docket Number: (No. 605-4439.)
• Citation: 282 S.W. 576
• Parties: PITTSBURG WATER HEATER CO. OF TEXAS v. SULLIVAN et al.
• Court: Texas Supreme Court

282 S.W. 576

PITTSBURG WATER HEATER CO. OF TEXAS v. SULLIVAN et al.

(No. 605-4439.)

Commission of Appeals of Texas, Section B.

April 20, 1926.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by the Pittsburg Water Heater Company of Texas against J. J. Sullivan and another. From a judgment sustaining a plea of privilege filed by the defendant named, plaintiff appealed to the Court of Civil Appeals,

which certified a question to the Supreme Court. Question answered.

D. A. Frank and Crane & Crane, all of Dallas, for appellant.

J. H. Synnott, of Dallas, for appellees.

POWELL, P. J.

This cause is pending in the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Fifth District:

"There is pending, on submission in the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, the following entitled and numbered cause, No. 9528, Pittsburg Water Heater Company of Texas, Appellant, v. J. J. Sullivan et al., appellees, in which the judges of said court are unable to agree as to the disposition that should be made of same, and, owing to the importance of the question involved to the judicial procedure of the state, the judges of said court deem it advisable to certify said cause to the honorable Supreme Court of Texas.

"Statement of the Case.

"Appellant, Pittsburg Water Heater Company of Texas, plaintiff in the court below, brought its suit in the district court of Dallas county, Tex., against appellees, Southwestern Bell Telephone Company and J. J. Sullivan, as defendants, alleging that appellant was a corporation organized under the laws of Texas with its principal office in the city and county of Dallas, state of Texas; that the Southwestern Telephone Company was a corporation organized and existing under the laws of the state of Missouri with its principal office and domicile in the city and county of Dallas, Tex.; that F. M. Hoag, who resided in the city and county of Dallas, Tex., was its vice president and general manager and agent, upon whom service of process could be had; and that J. J. Sullivan resided in Harris county, Tex.

"For cause of action, appellant pleaded as follows:

"That appellant has been for many years, and now is, engaged in the sale of Pittsburg water heaters and their repairs, sometimes called accessories; that it has for several years had a place of business at various points in Texas, as well as in Dallas, including Houston, Tex.; that it has extensively advertised its business at Houston, as well as in other localities, and that a part of its plan of advertising has been to put in the telephone directories its name and designation of its place of business and its telephone number; that in the Houston telephone directory issued by the defendant telephone company from time to time, its advertisement was in substantially the following form:

                "`Pittsburg Water Heater Company of Texas
                  "`611 San Jacinto,        Preston 776'
                

—by which it meant, and was understood by the public to mean, that appellant was doing business at 611 San Jacinto street, Houston, Tex., and that its telephone number was Preston 776. That as a result of said advertisement and strict attention to its business, honesty, and fair dealing, appellant had built up in Houston, prior to the 1st of December, 1924, a valuable business worth to it at least $10,000 per annum, net; that a large percentage of the business so built up, to wit, approximately 50 per cent., was obtained by telephone calls directed to appellant, calling its telephone number, Preston 776, and that this continued up to and until about the 1st of December, 1924; that on or about said last-named date appellee Sullivan, fraudulently designing to take advantage of the advertisement by appellant and the quality of its product that it sold, and particularly its Pittsburg water heater repairs or accessories, procured the appellee telephone company to insert an advertisement in his behalf in its telephone directory issued and distributed by said company to its patrons in Houston, Tex., on or about the 1st day of December, 1924, immediately under the advertisement of the appellant and in larger type than that of appellant; that said advertisement so inserted was, and is, substantially in the following words: `Pittsburg Water Heater Repairs, Preston 8946' —by which the said Sullivan meant to advise the public that all Pittsburg water heater repairs or accessories could be obtained from him by calling the telephone number aforesaid, Preston 8946, and that the public, believing that this was the number of another telephone at appellant's place of business, naturally used this number when wishing repairs. The telephone company filed an answer in the nature of confession and avoidance, alleging that it had no notice that appellee Sullivan was seeking said listing or advertisement in the directory of the telephone company with the design to procure to himself the business of appellant of repairing Pittsburg water heaters as alleged by appellant. Appellee Sullivan filed his plea of privilege to be sued in Harris county, Tex.; said plea being in the usual form. Appellant filed its sworn plea controverting said plea of privilege as required by statute.

"Disposition by Trial Court.

"Said plea of privilege, on proper hearing, was sustained by the trial court on the ground that appellee telephone company was not, within the meaning of the venue statute of Texas, article 1830 and article 2308 of the Revised Statutes of the state, an inhabitant or resident of Dallas county, Tex.

"Facts.

"On the trial of the plea of privilege the following facts were established: That appellee telephone company is a corporation, organized under the laws of the state of Missouri, and is the owner of the Bell telephone lines in several states, including Texas, Oklahoma, Missouri, Arkansas, and Kansas, and that it has a permit to do business in the state of Texas and maintains its general office in Dallas for Texas; that appellee Sullivan resides in Harris county, Tex., and did so reside prior to and at the date of the several transactions alleged in appellant's petition and controverting affidavit.

"Question.

"Assuming that a joint cause of action is alleged against the appellees, will the fact that appellee telephone company has a permit to do business in Texas, and, prior to and at the time of the filing of this suit, had its general Texas headquarters in Dallas county, Tex., authorize the joinder of the appellee Sullivan with it as a defendant in said suit and the holding of the cause for trial in Dallas county against Sullivan's plea of privilege to be sued in the county of his residence, on the theory that the appellee telephone company resides in Dallas county, Tex., within the meaning of exception 4 of article 1830 of the Revised Statutes of Texas?

"The decision of this question is in our judgment necessary to a determination of said cause."

The general rule with reference to venue of suits is stated in article 1830 of the Revised Civil Statutes of 1911, as follows:

"No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit."

Exception 4 to aforesaid article reads as follows:

"Where there are two or more defendants residing in different counties, in which case the suit may be brought in any county where any one of the defendants resides."

In construing aforesaid statutes, which have been the law in this state for more than half a century, our Supreme Court has held that "resident" and "inhabitant" convey the same meaning, and that the word "domicile" is used in the sense of "residence." Our court has also definitely determined that a party has but one domicile, but may have several residences. In the very early case of Brown v. Boulden, 18 Tex. 433, the court said:

"It, not unfrequently, is a question of considerable nicety and difficulty, to determine in which of two places a man's domicile really is. The statute also uses the word `inhabitant.' An inhabitant and resident mean the same thing. * * * And the word `domicile' is evidently used in the statute in the sense of residence. But there may be a difference between a man's residence and his domicile. He may have his domicile in one place, and still may have a residence in another; for although a man, for most purposes, can be said to have but one domicile, he may have several residences."

These holdings have been expressly approved in the following decisions of our Supreme Court: Wilson v. Bridgeman, 24 Tex. 615; Pearson v. West, 77 S. W. 944, 97 Tex. 238; Taylor v. Wilson, 93 S. W. 1095, 99 Tex. 651. In the Pearson Case, supra, one George West voted in Live Oak county and served on juries there and maintained his citizenship there generally; but he resided part of the year in Bexar county. The district court and Court of Civil Appeals held that he was not suable in Bexar county, but the Supreme Court reversed the holding and held to the contrary. Judge Brown summed up the matter as follows:

"The statute required that West should be sued in the county of his residence, and of this right he could not be deprived, but as he had a residence in each of two counties at the same time the law was satisfied by a suit at either place. The object was to bring litigation to the home of the defendant, which is done by suing in either county in which he resides."

In the Wilson Case, supra, one Taylor was sued in Liberty county, Tex., the residence of the plaintiff Wilson. Taylor was an inhabitant and citizen of New York state, but maintained a...