Southwestern Inv. Co. v. Gibson
| Decision Date | 08 November 1963 |
| Docket Number | No. 16463,16463 |
| Citation | 372 S.W.2d 754 |
| Parties | SOUTHWESTERN INVESTMENT COMPANY et al., Appellants, v. W. V. GIBSON et al., Appellees. |
| Court | Texas Court of Appeals |
Jones, Fillmore, Robinson & Lambert, and Harold Jones, Wichita Falls, for appellants.
Schenk & Wesbrooks, and Perry Wesbrooks, Wichita Falls, for appellees.
A question on appeal relates to the propriety of the action of the trial court in overruling a defendant's plea of res judicata on the matter of venue, in that appellant-defendant contended that there had been previous action, and by courts of competent jurisdiction, the legal effect of which settled the matter of the situs for trial of the asserted cause of action against it.
We hold that the trial court erred and that the plea of res judicata should have been sustained as to the defendant in question.
Plaintiff's cause of action was for damages on account of personal injuries sustained by his wife as the result of trespass and the unreasonable collection efforts of the defendant Investment Company, a corporation. The acts, which according to plaintiff constituted unreasonable collection efforts amounting to tort, must have been done and performed by the Investment Company through an agent, servant, and employee acting within the scope and course of his employment, for it is only through its agents that a corporation may commit a tort.
After the alleged tort plaintiff first filed suit in the District Court of Archer County. By such suit a single defendant was named, being the Investment Company. A plea of privilege to be sued in Potter County was filed, but before time for the filing of a controverting affidavit the plaintiff took a nonsuit.
After having taken the nonsuit in Archer County plaintiff filed a new suit, though upon the same cause of action, in Wichita County. The Investment Company filed a plea of privilege to be sued in Potter County. Plaintiff joined as defendant along with the Investment Company one Sinclair, a resident of Wichita County, who was alleged to have been the agent of the Investment Company who committed the tort. After plaintiff filed a controverting affidavit to the Investment Company's plea of privilege, a hearing on the plea was held in the District Court of Wichita County. During the course of the hearing it developed that it was not Sinclair who had committed the tort by reason of which the plaintiff's cause of action, if any, had arisen against the Investment Company, but it was one Carol Stites, a resident of Wichita County, who had been the actor. Stites was acting within the scope and course of his employment by the Investment Company.
At the conclusion of the Wichita County hearing the trial judge noted upon the court's docket sheet that the Investment Company's plea of privilege was sustained. On August 1, 1962, an order was entered to that effect, in which the court further decreed: '* * * the venue of such cause is changed and that such cause be transferred to the 47th Judicial District Court of Potter County, Texas, * * *.' On the same day plaintiff obtained an order of nonsuit against both Sinclair and the Investment Company.
Thereafter plaintiff filed suit upon the same cause of action in Archer County, joining Carol Stites with the Investment Company as an additional defendant. The Investment Company filed its plea of privilege to be sued in Potter County. Stites filed his plea of privilege to be sued in Wichita County. Plaintiff controverted these pleas. The Investment Company filed a plea of res judicata on the matter of venue, contending that in so far as plaintiff's suit obtained against it the suits for trial had therefore been judicially fixed as Potter County.
As previously stated, the contention of the Investment Company was correct and its plea of res judicata should have been sustained. Standing alone, the antecedent procedure in either of the courts where the plaintiff's suit had been theretofore filed would foreclose any trial of plaintiff's cause of action against the Investment Company anywhere other than in Potter County, the place of its residence. Actually the matter was settled when plaintiff took a nonsuit in the suit first filed in Archer County at a time when the Investment Company's plea of privilege was on file. It is immaterial that no controverting affidavit had been filed at the time. The legal result was the establshment of the situs for the trial of the cause of action as that asserted in the plea, as a matter of admission by the plaintiff, in so far as relief to be sought in the same cause of action might pertain to the Investment Company. First Nat. Bank in Dallas v. Hannay, 1933, 123 Tex. 203, 67 S.W.2d 215.
The same thing could be said of the proceedings in Wichita County. A plea of res judicata, by the Investment Company in that court, coupled with demonstration to the court that the cause of action asserted against it was unquestionably the same as the cause theretofore asserted by plaintiff in Archer County, would establish conclusively that the court was confronted with a...
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In re Lowe's Home Ctrs., L.L.C.
...Cook and Pinney who were parties to that judgment and to this suit in which Pinney asserted the plea of res judicata."); Sw. Inv. Co. v. Gibson, 372 S.W.2d 754, 756 (Tex. Civ. App.—Fort Worth 1963, no writ) ("The mere presence in one suit of additional parties not included in that wherein a......
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...judgmt. adopted); Keys v. May Aluminum, Inc., 431 S.W.2d 380 (Tex.Civ.App. Houston (14th Dist.) 1968, writ dism'd); Southwestern Investment Company v. Gibson, 372 S.W.2d 754 (Tex.Civ.App. Fort Worth 1963, no writ). In order for the principles of res judicata to apply the subsequent suit mus......
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