Union Bus Lines v. Byrd

• Decision Date: 09 February 1944
• Docket Number: No. 8195.,8195.
• Citation: 177 S.W.2d 774
• Parties: UNION BUS LINES et al. v. BYRD et al.
• Court: Texas Supreme Court

Page 774

177 S.W.2d 774

UNION BUS LINES et al. v. BYRD et al.

No. 8195.

Supreme Court of Texas.

February 9, 1944.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Suits by M. S. Byrd and another against Joe Amberson, doing business as Union Bus Lines, for personal injuries, wherein Joe Amberson filed cross-actions against Kimbriel Produce Company, Inc., for contribution, and Kimbriel Produce Company, Inc., filed pleas of privilege, which were tried together by agreement. From a judgment sustaining the pleas, Joe Amberson appealed to the Court of Civil Appeals, 178 S.W.2d 544, which certified to Supreme Court the question whether cross-defendant was a necessary party to plaintiffs' suits within an exception added to venue statute.

Question answered in negative.

Sid L. Hardin, of Edinburg, and Johnson & Rogers, of San Antonio, for appellants.

Harry Schulz, of George West, and T. P. Hull and Eskridge, Groce & Chiles, all of San Antonio, for appellee Kimbriel Produce Co.

Carter & Stiernberg, of Harlingen, for appellees Byrd and Dugat.

ALEXANDER, Chief Justice.

This suit involves a question of venue. It is before this Court on certified question from the San Antonio Court of Civil Appeals.

According to the facts stated in the certificate, a truck owned by Kimbriel Produce Company, Inc., collided with a bus operated by Joe Amberson, doing business as Union Bus Lines, injuring M. S. Byrd and Gaynell Dugat, passengers in the bus. The collision occurred in Live Oak County. Byrd and Dugat brought separate suits in Cameron County against Joe Amberson for damages sustained by them. Cameron County was not the residence of Joe Amberson, nor the home office of Union Bus Lines, but the venue of plaintiffs' suits as against said defendant was sustainable in that county on the ground that the bus line operated as a common carrier in said county and had an agent therein. Amberson filed a cross-action against Kimbriel Produce Company for contribution in the event judgment should be rendered against him. Kimbriel Produce Company filed a plea of privilege to be sued in Bexar County, the county of its residence, in each of the suits. The pleas of privilege were tried together by agreement for convenience. The pleas were sustained, and Amberson appealed. We will treat the two cases as a single suit.

The Court of Civil Appeals has certified to this Court the question: "Is Kimbriel Produce Company, Inc., a resident of Bexar County, the third party defendant below, a `necessary party' to the action as that term is employed in Exception 29a of Article 1995, Vernon's Ann.Civ.Stats.?"

Section 29a of Article 1995 above referred to reads as follows: "Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."

The rule is that where, under the exceptions contained in Article 1995, a suit is properly maintainable against one defendant in a county other than the county of his residence, and the plaintiff therein joins another as defendant and seeks to sustain venue as to him under Section 29a, such other defendant is a necessary party within the meaning of Section 29a if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties. Pioneer Building & Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900.

A different rule was announced in the case of First National Bank v. Pierce, 123 Tex. 186, 69 S.W.2d 756, cited by defendant, but the rule there announced was too restrictive, and is not now followed by this Court. Pioneer Building & Loan Ass'n v. Gray, supra; Tarrant v. Walker, supra.

It will be noted that the plaintiffs did not sue Kimbriel Produce Company. They sued only Amberson and sought judgment against him alone. Clearly, under these circumstances Kimbriel Produce Company was not a necessary party to plaintiffs' suit.

Amberson contends, however, that if he is liable at all, Kimbriel Produce Company is a joint tort-feasor with him, and under the provisions of Article 2212 he is entitled to recover contribution from Kimbriel Produce Company in the event he should be required to pay the damages suffered by plaintiffs. He further contends that he can recover such contribution only in the event Kimbriel Produce Company is before the court at the time judgment is rendered against him, and hence Kimbriel Produce Company is a necessary party to this suit.

Article 2212 provides as follows: "Art. 2212. And person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. If any of said persons co-defendant be insolvent, then recovery may be had in proportion as such defendant or defendants are not insolvent; and the right of recovery over against such insolvent defendant or defendants in judgment shall exist in favor of each defendant in judgment in proportion as he has been caused to pay by reason of such insolvency."

The above statute alters the common law rule to a certain...