Richardson v. D. S. Cage Co.

• Decision Date: 30 June 1923
• Docket Number: (No. 445-3827.)
• Parties: RICHARDSON v. D. S. CAGE CO. et al.
• Court: Texas Supreme Court

252 S.W. 747

RICHARDSON v. D. S. CAGE CO. et al.

(No. 445-3827.)

Commission of Appeals of Texas, Section A.

June 30, 1923.

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

Action by the D. S. Cage Company against J. F. Richardson and another. Judgment overruling a plea of privilege by defendant named was affirmed by the Court of Civil Appeals, and questions certified to Supreme Court. Questions answered.

Stevens & Stevens, of Houston, for plaintiff.

Campbell, Myer & Freeman and W. Ray Scruggs, all of Houston, for defendants.

GERMAN, J.

This case was certified to the Supreme Court by the Court of Civil Appeals for the First Supreme Judicial District at Galveston. The following are the material facts:

D. S. Cage Company filed suit in the county court at law of Harris county against J. F. Richardson, a resident of Liberty county, Tex., and the American Railway Express Company, a foreign corporation, with its principal Texas office and place of business in Harris county. The parties will be designated as in the lower court.

Plaintiff alleged in substance that about the 19th day of November, 1918, the defendant Richardson purchased from it 800 coconut bags at an agreed price of $220; that plaintiff agreed to furnish and deliver said bags to the American Railway Express Company at Houston, Harris county; and that sale was made upon the basis known as f. o. b. Houston, meaning that the bags at the price quoted would be delivered to the carrier at Houston for shipment to the defendant at Liberty. Plaintiff further alleged that the bags were properly marked and addressed to defendant Richardson and were delivered by it to the American Railway Express Company at Houston in good condition for shipment to Richardson. That thereby Richardson became bound and liable to pay plaintiff the sum of $220 for said bags. It was further alleged that defendant Richardson was claiming that a part of the bags were not delivered to him by the express company, and he was refusing to pay for same upon the ground that the bags were not to be paid for until after delivery was made to him, and the failure of the express company to deliver a part of the bags justified him in refusing to pay for same. Plaintiff specially denied that it was its duty to deliver the bags to Richardson, but alleged that they were delivered to the express company in good condition, and if same were not delivered to Richardson in good condition it was due to the fault of the express company. It alleged that, if the court should find that it was plaintiff's duty to deliver the bags to Richardson at Liberty (which was not admitted, but denied), then the express company would be liable for conversion of the bags and for failure to deliver same according to the terms of their contract of carriage.

Defendant Richardson filed plea of privilege to be sued in Liberty county. This plea was controverted on the ground that the defendant express company had an agent and office in Harris county, and suit being properly brought in that county against said company, under exception 4 of article 1830, Rev. St., Richardson could also be sued in that county. In reply to the controverting affidavit, Richardson alleged that the causes of action against him and the express company, if any, were separate and distinct, and that the express company had been joined in the suit simply for the purpose of attempting to obtain venue against him in Harris county.

It was admitted that defendant Richardson resided in Liberty county, and that none of the exceptions to exclusive venue in the county of one's residence existed, unless it was exception 4 to article 1830, and the only controverted issue was whether the venue in this cause came under said exception 4 with reference to suing two or more defendants who reside in different counties. It was also admitted that the express company was a common carrier for hire, with its principal Texas office in Harris county, and that it received the bags for transportation to defendant Richardson at Liberty as alleged.

The only testimony in the case was that of Richardson, who testified in substance that he ordered of plaintiff 800 cocoanut bags of standard quality to be shipped from Houston to Liberty, and that they were shipped in two lots. That when the first lot of 400 arrived he received them from the American Railway Express Company, but the bags did not come up to specifications. That when the second shipment arrived and was tendered to him by the express company he refused to take the same out of the express office, and his reason for declining to accept the same was that the bags were not the kind he ordered from plaintiff. He further testified that when the sacks arrived they were rotten and weak and were breaking out of the sacking and wrapping containing them.

The hearing was on the plea of privilege only. The trial court overruled the plea, and appeal was taken from that ruling. The question certified by the Court of Civil Appeals is as follows:

"Did the trial court err in overruling defendant Richardson's plea of privilege?"

Article 1830 of the statutes provides:

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

"(4) 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 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 or necessary party to the action. The rule also is that when the defendant is an inhabitant of this state he is entitled, as a privilege conferred by the statute, to be sued in the county of his domicile, and that to entitle the plaintiff to bring his suit in any other county he must bring his case clearly within one of the exceptions to the statutory rule. The defendant is not to be denied the privilege of being sued where he resides upon a strained or doubtful construction of the exceptional provision. Lasater v. Waits, 95 Tex. 555, 68 S. W. 500.

In the present instance, for plaintiff to be authorized to maintain its suit in Harris county as to defendant Richardson it must have a bona fide cause of action against the American Railway Express Company, as well as against Richardson, which cause of action must be a joint one; or at least the cause of action against the express company must grow out of the same transaction and be so intimately connected with the cause of action against Richardson that the two should be joined under the rule intended to avoid a multiplicity of suits.

Without undertaking to establish a rule as to the general burden of proof under the provisions of article 1903 of the statutes, where the plea of privilege has been controverted by the plaintiff, we will state that there are numerous decisions to the effect that in cases where the plaintiff seeks to maintain his suit against a defendant outside the county of his residence under certain exceptions to article 1830, among which is included exception 4, it is required of him to allege and prove the facts necessary to clearly bring his case under the particular exception claimed by him as authority for the action. As to exception 4: First Nat. Bank of Bowie v. Bulls (Tex. Civ. App.) 243 S. W. 577. As to exception 5: Gensberg v. Neely (Tex. Civ. App.) 187 S. W. 247. As to exception 7: Coalson v. Holmes, 111 Tex. 502, 240 S. W. 898; Graves v. McCollum (Tex. Civ. App.) 193 S. W. 217; Durango Land & Timber Co. v. Shaw (Tex. Civ. App.) 165 S. W. 490. As to exception 9: Hilliard v. Wilson, 76 Tex. 184, 13 S. W. 25. As to...