Skelly Oil Co. v. Medart

• Decision Date: 07 December 1972
• Docket Number: No. 5208,5208
• Citation: 488 S.W.2d 175
• Parties: SKELLY OIL COMPANY, Appellant, v. Elva Imo MEDART et vir, Appellees.
• Court: Texas Court of Appeals

Page 175

488 S.W.2d 175

SKELLY OIL COMPANY, Appellant, v. Elva Imo MEDART et vir, Appellees.

No. 5208.

Court of Civil Appeals of Texas Waco.

Dec. 7, 1972.

Rehearing Denied Dec. 28, 1972.

Naman, Howell, Smith & Chase (Larry O. Brady), Waco, for appellant.

W. V. Dunnam, Jr., Waco, for appellees.

OPINION

JAMES, Justice.

This is a venue case involving subdivision 27 of Article 1995, Vernon's Annotated Texas Civil Statutes. Plaintiff-Appellees Elva Imo Medart and husband W. Otha Medart sued each in a separate suit Defendant-Appellant Skelly Oil company, (a foreign corporation doing business in Texas) in McLennan County, Texas, alleging that an explosion occurred in the restrooms of a service station in Mountainburg, Arkansas, on October 5, 1970, resulting in personal injuries and damages to the Medarts. Defendant-Appellant Skelly filed pleas of privilege to these suits, requesting to be sued in Dallas County, the County of its residence, which were controverted by the Medarts under subdivision 27, Article 1995, V.A.T.S. The trial court after a joint hearing of the venue of both suits, overruled Skelly's pleas of privilege.

The controverting pleas alleged that venue lies in McLennan County, Texas under subdivision 27 of Article 1995, because Skelly is a foreign corporation doing business in Texas, and has an agency or representative in McLennan County.

Since it is undisputed that Skelly is a foreign corporation doing business in the State of Texas, the only issue presented to us is whether Skelly had an agency or representative in McLennan County, Texas, either at the time the suits were filed or on the date of hearing, within the meaning of subdivision 27.

Appellant presents three points of error, asserting that there is no evidence, and insufficient evidence that Skelly had such an agency or representative in McLennan County, and that a finding by the trial court that Skelly had such an agency or representative is against the great weight and preponderance of the evidence. We overrule these contentions and affirm the trial court's judgment.

The only witness testifying at the venue hearing was J. W. (Red) Maddux of Maddux Oil Company, who testified that he lives in McLennan County and owns one-third of the stock in Maddux Oil Company, a Corporation, and is the operating head thereof. Maddux Oil Company has maintained a fixed, permanent place of business in McLennan County from prior to October 5, 1970, up to the time of hearing.

Maddux first started operating under a written contract with Skelly about 2 1/2 years ago. The contract is not in evidence. However, the course of dealings between Maddux and Skelly has been as follows: Maddux buys gasoline from Skelly and pays Skelly for it. Then Maddux sells the gasoline to Big Tex Oil Company which in turn sells and delivers the gasoline to service stations (all located outside of McLennan County) which operate under the Skelly Oil Company name. These service stations are not owned or operated by either Maddux or Skelly, but by various third persons. The record shows that there were four or five such stations being serviced at the time of hearing, located variously in Bosque, Coryell, Bell and perhaps other counties. When Maddux first started his relationship with Skelly, none of these service stations were handling Skelly's products. Maddux had gone out and solicited these stations to handle Skelly's products, told them how much the fuel would cost, what sales aids Skelly would furnish and secured each station operator's consent to be a Skelly dealer and handle Skelly products. Also, Skelly had some large signs bearing the name 'Skelly Oil Company', designed for use by service stations who would sell their products. These signs were available to be leased by Skelly to a service station handling Skelly's products. Maddux was authorized by Skelly to inform each service station operator (who had agreed to handle Skelly's products) of the basis upon which such signs could be leased. Then Maddux would notify Skelly of the need for such signs, whereupon Skelly would sometimes send such signs to Maddux for delivery to the stations. On other...