Southwestern Bell Tel. Co. v. Thomas

• Decision Date: 20 November 1975
• Docket Number: No. 986,986
• Citation: 535 S.W.2d 686
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. John THOMAS et al., Appellees. . Appendix Preliminary Opinion and Order
• Court: Texas Court of Appeals

Page 686

535 S.W.2d 686

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. John THOMAS et al., Appellees.

No. 986.

Court of Civil Appeals of Texas Corpus Christi.

Appendix Preliminary Opinion and Order Nov. 20, 1975.

March 3, 1976.

Rehearing Denied April 22, 1976.

Russell H. McMains, Fulbright & Jaworski, Houston, for appellant.

Ernest H. Cannon, Riddle, Murphrey, O'Quinn & Cannon, Houston, for appellees.

OPINION

NYE, Chief Justice.

This suit arose as a result of a rear-end collision that occurred in Galveston County between a vehicle owned and operated by plaintiffs, John Thomas and Johnnie Mae Thomas, and another vehicle owned by defendant Southwestern Bell Telephone Company and operated by defendant's employee, John Cliver, Jr. After a hearing on defendant's plea of privilege (which the trial court overruled), the case proceeded to trial before a jury solely on the issues of damages. The jury found that plaintiffs had been damaged in the sum of $67,934.00. The trial court thereafter rendered judgment in favor of plaintiffs for such sum. The defendant Telephone Company has duly perfected its appeal to this Court.

This appeal consists of three separate appellate problems. The first is a consideration of a second appeal from the overruling of a plea of privilege, the first having been dismissed by this Court for lack of jurisdiction. Second is the consideration of the sufficiency of the appellate record caused by the death of the court reported after the appeal on the merits had been perfected; and finally, the appeal on the merits of the case. The defendant brings forward some 28 points of error concerning these three problems.

Defendant initially attempted to appeal from the overruling of its plea of privilege under the provisions for appeal of interlocutory orders (Rule 385, T.R.C.P.), but failed to timely perfect its appeal . This Court dismissed the appeal for lack of jurisdiction. Although the defendant had previously attempted to perfect an appeal from the order overruling the plea of privilege, the defendant is not prejudiced from having the same considered in this appeal from the final judgment. Barron v. James, 145 Tex. 283, 198 S.W.2d 256 (Tex.Sup.1946); Reynolds v. Groce-Wearden Co., 250 S.W.2d 749 (Tex.Civ.App.--San Antonio 1952, writ ref'd).

This brings us to the first group of points (points of error 3, 4, and 5) which concerns defendant's complaint that the trial court erred in overruling its plea of privilege to be sued in the county of its residence, when such ruling was based on Subdivision 27, ¹ of Article 1995, Tex.Rev.Civ.Stat.Ann. The defendant argues that Subdivision 27 is unconstitutionally discriminatory against foreign corporations, of which the defendant company is one.

The defendant is a foreign corporation, qualified to do business in the State of Texas, with residence in Harris County. It also maintains an office and agents in Bay City, Matagorda County, Texas. The defendant's employee, John Cliver, Jr., was a resident of Ector County. The plaintiffs were residents of Harris County, Texas, and the collision which is the subject of controversy occurred in Galveston County, Texas.

The plaintiffs instituted their lawsuit in Matagorda County, Texas . Defendant subsequently filed its plea of privilege to be sued in the county of its residence, that being Harris County, Texas. The plaintiffs then filed their controverting plea alleging that venue was proper in Matagorda County, Texas, pursuant to Subdivision 27, Article 1995, because the defendant was a foreign corporation doing business within this State and the case was pending in Matagorda County in which county defendant has an agency or representative. The trial court overruled defendant's plea of privilege basing its ruling on Subdivision 27 of Article 1995 because defendant did in fact have an agent and/or representative in Matagorda County, Texas.

The defendant does not contend nor assert that plaintiffs failed to prove their right to venue in Matagorda County pursuant to Subdivision 27. In its brief, defendant asserts that the error in overruling appellant's plea of privilege under Subdivision 27 stems not from the appellees' failure to facts, but rather the unconstitutionality of Subdivision 27 because of the discriminatory treatment accorded foreign corporations under the relied upon Subdivision.

Appellant asserts that Subdivision 27 of Article 1995 is unconstitutional on two grounds: 1) it affords broader venue for actions against foreign corporations than is afforded against domestic corporations under Subdivision 23; and 2) under Subdivision 23, a plaintiff is required to prove a cause of action against a domestic corporation in order to maintain venue, whereas such is not required under Subdivision 27 solely because the defendant in the latter instance is a foreign corporation. The appellant cites two cases, those being Fireman's Fund Insurance Company v. McDaniel, 327 S.W.2d 358 (Tex.Civ.App.--Beaumont 1959, no writ) and Maryland Casualty Company v. Torrez, 359 S.W.2d 559 (Tex.Civ.App.--Eastland 1962, dism'd w.o.j.; 363 S.W.2d 235 (Tex.)).

The Supreme Court of Texas has recently held that this Subdivision is not unconstitutional. Commercial Insurance Company of Newark, New Jersey v. Adams, 369 S.W.2d 927 (Tex.Sup.1963). The appellant concedes that this is the law but argues that the Adams case should either be overruled or distinguished. The appellant asserts that the Houston Court of Civil Appeals in Adams, 366 S.W.2d 801 (Tex.Civ .App.--Houston 1963), aff'd 369 S.W.2d 927 (Tex.Sup.1963) determined only that Subdivision 27 was not unconstitutional for affording wider venue against foreign corporations than domestic corporations. Appellant claims that a different argument against Subdivision 27 is that it is also unconstitutional because it does not require proof of the cause of action. However, such argument as presented by the appellant was also asserted without success in Humble Oil & Refining Company v. Preston, 487 S.W.2d 956 (Tex.Civ.App.--Beaumont 1972, writ dism'd). We hold that Subdivision 27 of Article 1995 is not unconstitutional.

There is a further reason why defendant's points of error relating to its plea of privilege are overruled. The defendant's plea of privilege was filed July 27, 1973, and finally disposed of July 22, 1974, about one year later. In the meantime, after the filing of defendant's plea of privilege, but prior to a ruling thereon, the trial court acted on three of the defendant's motions. It overruled defendant's motion to compel a second physical examination; it overruled defendant's motion to dismiss; and it sustained defendant's special exceptions.

The general rule in Texas is that a plea of privilege is waived if the defendant, without first insisting upon its disposition, urges a special exception. This rule applies only when judicial power is invoked on a matter and in a manner which negates a continuing intent to insist upon the plea. Pit Construction Company v. West Texas Equipment Company, 494 S.W.2d 642 (Tex.Civ.App.--Amarillo 1973, writ dism'd); Talbert v. Miles, 477 S.W .2d 710 (Tex.Civ.App.--Waco 1972, no writ); 1 McDonald, Texas Civil Practice, Venue, § 4.40, p. 572, 59 Tex.Jur.2d Venue § 158. The ruling by the trial court by overruling defendant's motion to dismiss, without the defendant first insisting on the disposition of its plea of privilege, invoked the judicial power of the court in a manner inconsistent with a continuing intention to insist upon the plea. This caused a waiver of defendant's plea of privilege. First State Bank and Trust Company of Rio Grande City v. Colpaugh, 489 S.W .2d 675 (Tex.Civ.App.--San Antonio 1973, no writ); 1 McDonald, Texas Civil Practice, Venue § 4.40, p. 572. The defendant's points of error concerning the plea of privilege are overruled. The trial court's judgment on the plea of privilege is affirmed.

The second group of points of error (points 6, 7 and 8) concern the statement of facts which was conditionally tendered to this Court. The controversy with regard to the statement of facts arose due to the untimely and unfortunate death of Mr. Whit Waide, the official court reporter for the 130th Judicial District Court in Matagorda County, in September 1974. The facts surrounding the controversy are relatively undisputed. Even though these points of error are now moot because of the action taken by this Court and the subsequent action taken by the trial court, we believe the problem needs to be aired.

Following the trial on September 27, 1974, the appellant's attorney requested a statement of facts of all the evidence adduced in the trial from the official court reporter, Whit Waide. Mr. Waide started working on the record and had completed approximately ten to twenty pages of it when he became ill and subsequently died.

After two unsuccessful attempts to have Mr. Waide's notes transcribed by two other court reporters, the notes were tendered to and were finally transcribed by a third court reporter, Clinton Gettig. Upon receiving a copy of the Getting transcription, appellant's attorney noted certain discrepancies and omissions. These included missing exhibits and objections which were not included in the record, misspelled words and other errors. Appellant's attorney refused to approve the same after the attorneys for both parties could not agree. Appellant's attorney then requested a hearing pursuant to Rule 377(d), T.R.C.P., which governs the matter of securing a statement of facts for appellant purpose. Subdivision (d) of Rule 377 sets out the duty of the trial court to settle differences between the parties as to whether the record truly discloses what occurred. It reads in part as follows:

'(d) . . . If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of...