Thomas v. Cactus Drilling Corp. of Texas

• Decision Date: 29 June 1966
• Docket Number: No. 11413,11413
• Citation: 405 S.W.2d 214
• Parties: Jimmy Guss THOMAS, Appellant, v. CACTUS DRILLING CORPORATION OF TEXAS, Appellee. . Austin
• Court: Texas Court of Appeals

Page 214

405 S.W.2d 214

Jimmy Guss THOMAS, Appellant, v. CACTUS DRILLING CORPORATION OF TEXAS, Appellee.

No. 11413.

Court of Civil Appeals of Texas Austin.

June 29, 1966.

John J. Watts and James D. Cunningham, Odessa, for appellant.

Hardeman, Smith & Kever, Lee Arnett and Kenneth P. Courtright, San Angelo, for appellee.

HUGHES, Justice.

This appeal is from a summary judgment rendered in favor of Cactus Drilling Corporation of Texas, appellee, on the ground that the suit brought against it by Jimmy Guss Thomas, appellant, for damages for personal injuries allegedly sustained by him as a result of negligence of appellee was barred by the two year statute of limitations. Art. 5526, Vernon's Ann.Tex.Civ.St.

Appellant has three points of error but they are all controlled by the major premise that in bringing his suit he, by inadvertence, misnamed the party he intended to sue as the 'Cactus Drilling Company, a Corporation,' rather than naming the true defendant, 'Cactus Drilling Corporation of Texas.' This mistake was not discovered until more than two years had passed after the cause of action accrued.

We must determine whether, under the undisputed facts, a mere misnomer has occurred or the wrong party sued. If the right party has been sued and served by the wrong name, there is a pure misnomer which may be corrected, but if not corrected the validity of a judgment against the true defendant is not thereby affected. Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840. If it is made to appear that the wrong party has been sued and served, then no judgment can rightfully be rendered against him.

The facts in this case are:

Appellant's cause of action accrued December 19, 1960. Appellant filed suit on April 27, 1961 in the District Court of Dawson County against Cactus Drilling Company, a Corporation, alleging its registered agent for service to be F. M. Late. Citation issued the same day and was served May 1, 1961, by serving F. M. Late, its agent. Cactus Drilling Company filed a plea of privilege asserting its right to be sued in Tom Green County, and an answer, in general terms, subject to such plea. This plea was sustained December 18, 1961.

After the case reached Tom Green County, Cactus Drilling Company filed, June 16, 1964, an amended answer but, other than by general denial, did not suggest that appellant had sued the wrong party. In fact it alleged affirmative defenses of unavoidable accident, contributory negligence and assumption of risk.

On August 18, 1965, appellant filed an amended petition. On September 15, 1965, Cactus Drilling Company filed its motion for summary judgment in which it stated 'The affidavit of Bruce Bacon which is attached hereto and made a part hereof for all purposes shows, and it is a fact, that CACTUS DRILLING COMPANY could not in anywise be responsible for any alleged injuries suffered by the said Jimmy Guss Thomas for the reason that the said CACTUS DRILLING COMPANY had nothing to do with the work being done at the time and place set out in Plaintiff's Petition, where he is alleged to have received his injuries. The employees whom he charges with negligence were employed solely by CACTUS DRILLING CORPORATION OF TEXAS, a separate and distinct legal entity. None of such employees were employed by CACTUS DRILLING COMPANY and CACTUS DRILLING COMPANY, therefore, could not in anywise be responsible to Plaintiff herein.'

These statements were not controverted.

On September 23, 1965, appellant filed an amended petition in which he alleged a cause of action against Cactus Drilling Corporation of Texas and procured service of process on F. M. Late, alleged in such petition to be its registered agent for service. Cactus Drilling Company was also named a defendant in this pleading. ¹

After filing answer, appellee, on October 19, 1965, filed its motion for summary judgment on the ground that appellant's cause of action was barred by the two year statute of limitations.

Appellant replied to this motion for summary judgment and took depositions which reflect that F. M. Late was the majority stockholder and president of both corporations sued and that both corporations had the same insurance carrier. The two...