O'Quinn v. Scott, 3049

• Decision Date: 10 July 1952
• Docket Number: No. 3049,3049
• Citation: 251 S.W.2d 168
• Parties: O'QUINN et ux. v. SCOTT et al.
• Court: Texas Court of Appeals

Page 168

251 S.W.2d 168

O'QUINN et ux. v. SCOTT et al.

No. 3049.

Court of Civil Appeals of Texas, Waco.

July 10, 1952.

Rehearing Denied Sept. 25, 1952.

G. Woodson Morris, Chas. R. Hancock, San Antonio, for appellants.

Wood & Clopton, Austin, John M. Lawrence, III, Bryan, for appellees.

HALE, Justice.

This is an appeal from a summary judgment rendered in favor of appellees. The controlling question presented on the appeal is whether the cause of action asserted by appellants in the court below against W. W. Scott Construction Co., a corporation, and the other appellees as trustees of the corporation after its dissolution, was barred by limitations under the provisions of Arts. 5526 and 5539b of Vernon's Tex.Civ.Stats. If so, the judgment should be affirmed; otherwise, it should be reversed.

On October 17, 1949, appellants, Justine O'Quinn and wife, filed their original petition in the trial court against W. W. Scott, J. M. Fountain and W. E. Kutschback, alleging that on October 18, 1947, the defendants were partners in the construction business and were operating under the firm name of W. W. Scott Construction Co.; that on the latter date appellants sustained certain injuries to their persons and property in Winnsboro, Wood County, Texas, as a result of the construction work being done by defendants for the City of Winnsboro; and that their injuries were proximately caused by various specific acts of negligence on the part of the agents, servants and employees of the defendants, to their damage in the sum of $25,800, for which they sought recovery. On November 3, 1949, defendants filed their joint answer to the original petition of appellants wherein they denied under oath that they were engaged in the construction business as a partnership under the name of W. W. Scott Construction Co. at the times and places mentioned in the petition of appellants or that they were engaged as individuals or as a partnership in any construction work as therein alleged.

On March 2, 1950 appellants filed their first amended petition in the cause, naming W. W. Scott Construction Co., a corporation, as an additional defendant. The allegations contained in the first six paragraphs of the amended petition were substantially the same as the allegations contained in their original petition. In paragraph seven of their amended petition, appellants pleaded in the alternative that if the three individuals therein named as defendants were not responsible as partners for the construction work by which they were injured, then the defendant, W. W. Scott Construction Co., a corporation, was responsible for such work and the acts of negligence therein complained of were committed by the agents, servants and employees of the corporation. In paragraph eight of their amended petition they further pleaded, in the alternative, that if W. W. Scott Construction Co. no longer existed as a corporation, then in that event the three individuals therein named as defendants were the sole officers of the corporation at the time it was dissolved and as such they received all of the property and effects of the dissolved corporation and by reason thereof they were individually and collectively responsible as trustees to appellants. They prayed for recovery against the three individuals named as defendants; and in the alternative, for recovery against the corporate defendant; and in the further alternative, for recovery against the three individual defendants in their capacity as trustees.

On March 29, 1950, W. W. Scott Construction Co., a corporation, acting by its attorney, filed its answer in the cause which consisted, among other affirmative defenses, of a plea of limitation as follows: 'That plaintiffs' cause of action, if any they had against this defendant, accrued more than two years before the filing of their first amended petition, which this defendant alleges was the commencement of this suit in so far as this defendant was concerned and that said cause of action was barred by limitation, all of which he was ready to verify.'

In due time the defendants named in the first amended petition of appellants filed and presented their joint motion under the provisions of rule 166-A, Texas Rules of Civil Procedure, for a summary judgment in their favor. The motion was based upon an affidavit executed by the three individuals named as defendants in the cause. From the affidavit it appears that the affiants were not engaged as partners at any time in construction work, either at Winnsboro or elsewhere; that W. W. Scott Construction Co. was a corporation duly organized and existing as such under the laws of Texas on and prior to October 18, 1947 and on the latter date it was engaged under a contract with the City of Winnsboro in doing certain construction work in that city; that the corporation continued in the construction business for about one year after that date when it became insolvent; that upon becoming insolvent all of its assets were reduced to cash and paid to its creditors; that the corporation was dissolved on December 30, 1948 and that none of the affiants received any property or money from the corporation, either as individuals or trustees. There was no claim in the affidavit that the affiants were not the sole officers of the corporation at the time of its dissolution. The motion for a summary judgment was granted and judgment was summarily rendered that appellants take nothing by reason of their suit against appellees.

In order to establish their asserted right to a summary judgment under the provisions of rule 166-A, T.R.C.P., appellees had the burden of showing at the hearing of their motion that, except as to the amount of damages claimed by appellants, there was no genuine issue as to any material fact alleged in the first amended petition of appellants and that appellees were entitled to a judgment in their favor as a matter of law. If the cause of action alleged by appellants in their first amended petition against W. W. Scott Construction Co., a corporation, or the individual defendants named therein as trustees, was barred by the statutes of limitation, then in that event appellees discharged their burden and the trial court was warranted in granting their motion; but if such cause of action was not barred by limitation, then we must assume there were genuine issues as to the material...