Port Terminal R. Ass'n v. Leonhardt

• Decision Date: 30 March 1956
• Docket Number: No. 15707,15707
• Citation: 289 S.W.2d 649
• Parties: PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. W. C. LEONHARDT, Appellee.
• Court: Texas Court of Appeals

Page 649

289 S.W.2d 649

PORT TERMINAL RAILROAD ASSOCIATION, Appellant, v. W. C. LEONHARDT, Appellee.

No. 15707.

Court of Civil Appeals of Texas, Fort Worth.

March 30, 1956.

Rehearing Denied April 27, 1956.

Andrews, Kurth, Campbell & Bradley, Raymond A. Cook, and William H. Tenison, Jr., Houston, for appellant.

Wade, Davis, Callaway & Marshall and Clyde M. Marshall, Jr., Fort Worth, for appellee.

MASSEY, Chief Justice.

The Texas & New Orleans Railroad Company joined with other railroads and persons in a joint enterprise in Harris County, Texas. The joint enterprise was the operation of the activities of normal railroad facilities servicing the wharves and water-transportation carriers along the Houston Ship Channel. In other words, the network of rail lines was operated as a joint venture rather than by each railroad corporation attempting to build and maintain individual lines to and from the loading and unloading points along said Channel. The enterprise was conducted under the name of Port Terminal Railroad Association. Said Association was formed pursuant to contract between the member railroads and other persons, and partook of the nature of a joint adventure as discussed in chapter thereon in 25 Tex.Jur., beginning at page 159. See also the chapter on 'Associations' in 5 Tex.Jur., beginning at page 122.

On September 12, 1954, the truck of W. C. Leonhardt was in Harris County. While being driven across a railroad crossing it was struck and damaged by an engine of the Texas & New Orleans Railroad Company, operated at the time as a part of the activities of the Port Terminal Association. Leonhardt brought a suit for damages because thereof in Tarrant County, Texas. He sued both the Railroad Company and the Association. Both defendants filed pleas of privilege to be sued in the county of their residences, to-wit, Harris County.

Leonhardt filed a controverting affidavit as to each defendant sued. The pleas of privilege were heard and overruled in the trial court. The Port Terminal Railroad Association is before us on appeal, the Texas & New Orleans Railroad Company is not.

Venue as to the Railroad Company, a nonresident, was clearly held in Tarrant County under Subdivision 23, of Article 1995, Vernon's Ann.Tex.Civ.St. Said Company had an agency or representative in and also operated its road in said county, it being the residence of Leonhardt.

The Association contends that as an 'association' within the meaning of Article 6133, V. A.T.S., it has a residence in Harris County as a separate legal entity. As such, it claims that it is subject to the venue provisions of Subdivision 23 of Article 1995, providing that suits against it may be brought in the county of a plaintiff's residence when it has an agency or representative in said county. We agree with the Association that for purposes of litigation, in view of Articles 6133 to 6136, inclusive, it is to be considered as an entity having a residence in Harris County. 5 Tex.Jur., p. 123, 'Associations', sec. 2, 'Definition and Nature'; Frank v. Tatum, 1894, 87 Tex. 204, 25 S.W. 409; Eastern States Petroleum Co. v. Texas & N. O. R. Co., Tex.Civ.App., Eastland, 1938, 114 S.W.2d 408, writ dismissed. See the interesting study of the origin and purpose of this character of remedial statute 2 P.2d at page 759 of the case of Jardine v. Superior Court of Los Angeles County, 1931, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291.

But it is to be noted that Article 6137 provides that when members of such an association are made parties individually, as defendants along with the association, any judgment thereafter obtained by a plaintiff extends to and is binding upon the property of said individual defendants subject to execution in the event the execution issued upon joint property of the...