Vines v. Harry Newton, Inc.

• Decision Date: 12 June 1969
• Docket Number: No. 15483,15483
• Citation: 445 S.W.2d 260
• Parties: James R. VINES et al., Appellants, v. HARRY NEWTON, INC. et al., Appellees. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 260

445 S.W.2d 260

James R. VINES et al., Appellants, v. HARRY NEWTON, INC. et al., Appellees.

No. 15483.

Court of Civil Appeals of Texas Houston (1st Dist.).

June 12, 1969.

On Rehearing Sept. 11, 1969.

Second Rehearing Denied Oct. 9, 1969.

Patterson, McDaniel & Browder, Houston, for appellants; Bennett B. Patterson, Stephen W. Schueler, Houston, of counsel.

Fulbright, Crooker, Freeman, Bates & Jaworski, Royce R. Till, Arno W. Krebs, Jr., Houston, for appellees.

COLEMAN, Justice.

This is an appeal from the order of the trial court sustaining the pleas of privilege of Harry Newton, Inc., and R. N. Adams Construction Company. No findings of fact or conclusions of law were requested or filed. Subdivisions 4, 23 and 27, Art. 1995, Vernon's Ann.Civ.St., R.C.S., are the exceptions to the general venue rule with which this appeal is concerned.

This suit arose out of a collision between a passenger vehicle and a truck on Highway 90 in Waller County, Texas. Several passengers in the station wagon were killed. A suit for damages was filed in Harris County, Texas, against the driver of the truck, the owner of the truck, and three corporations who were engaged as joint venturers in the construction of a portion of Interstate Highway No. 10 paralleling Highway 90, and approximately 20 feet away from it. It is contended that the negligence of the joint venturers in failing to use the necessary safeguards to protect the highway and maintain it in a safe condition during heavy rains and inclement weather, particularly at night time, was a proximate cause of the collision. It is also contended that the driver of the truck, and its owner, J. V. Harrison Truck Lines, Inc., were guilty of negligence, which was a proximate cause of the collision.

R. N. Adams Construction Company is a Delaware corporation having its principal office in Texas in the City of Kaufman. Harry Newton, Inc. is a Texas corporation having its principal office and place of business in the City of Graham, Young County, Texas. Gulf Bitulithic Company is a Delaware corporation with a permit to do business in the State of Texas, and having a registered agent and its principal place of business in Texas in the City of Houston. J. V. Harrison Truck Lines, Inc. is a Texas corporation with a domicile and registered agent in Houston, Texas. The plaintiffs are residents of Harris County, Texas.

Harry Newton, Inc. and R. N. Adams Construction Company filed pleas of privilege, alleging that the counties of their principal places of business were, respectively, Young County and Kaufman County, Texas. The pleas of privilege were controverted. In the plaintiffs' second amended petition it was alleged that the domicile and principal place of business of Harry Newton, Inc. was the City of Freeport, Brazoria County, Texas. It was stipulated that its office and principal place of business was in Young County, Texas. There was no proof presented at the trial as to the location of its registered agent or office.

R. N. Adams Construction Company is a foreign corporation and venue as to it is determined by the provisions of Subsection 27 of Art. 1995, R.C.S. To sustain venue in Harris County it was necessary to prove that the company was a foreign corporation and had an agent or representative in Harris County, Texas, at the time the suit was filed. It is conceded that it was a foreign corporation, and appellants contend that because Gulf Bitulithic Company was a resident of Harris County and a partner in the joint venture, the necessary venue facts were established. It is not necessary to prove a cause of action against the foreign corporation or the alleged agent or representative. An agent or representative, as contemplated by Subdivision 23 is shown by proof of '* * * a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of 'agency' and the other of 'representative'.' Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194 (1952). A corporation may be such an agent or representative. Ibid. A member of a joint venture possesses the broad powers of a partner to act for the others engaged in the enterprise on matters pertaining to the enterprise. Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554 (1925); Rice v. Lambert, 408 S.W.2d 287 (Tex.Civ.App., Corpus Christi, 1966); Eastep v. Travelers Ins. Co., 235 S.W.2d 732 (Tex.Civ.App., Ft. Worth, 1950, ref., n.r.e.). Both the pleadings and the evidence show that the cause of action asserted against the members of the joint adventure arose out of the prosecution of the adventure. Gulf Bitulithic Company was a representative of R. N. Adams Construction Company in matters within the scope of the joint adventure and was, therefore, a representative as contemplated by Subd. 27 of Art. 1995, R.C.S.

The evidence shows that the joint adventure was in existence at the time of the collision. There is no affirmative evidence that it continued on July 26, 1966, the date on which the suit was filed. The contract with the State of Texas provided that the work should be completed in 350 working days from January 13, 1965. A working day was defined as a calendar day not including Saturdays, Sundays, and legal holidays, in which weather or other conditions not under the control of the contractor, will permit the performance of the principal units of work underway for a continuous period of not less than seven hours from 7 a.m. to 6 p.m.

Neither this provision of the contract, nor any other evidence, establishes that the contract had been completed and accepted by the State. Since the existence of the partnership has been established, it will be presumed that it continued in existence for a reasonable time. In the absence of evidence to support a finding that it terminated prior to that date, a reasonable time would include the date on which the suit was filed. Mayhew v. McFarland, 137 Tex. 391, 153 S.W.2d 428 (1941); Mann, Mauck & Stephens v. Clapp & Brown, 1 White and Wilson Civ.App.Cas., § 504 (1883).

Since Harry Newton, Inc. is a Texas corporation venue as to it is governed by Subsection 23 of Art. 1995, R.C.S. To sustain venue under this subsection it is necessary to prove a cause of action against the corporation even though it may have an agency or representative in the county of suit. Venue in Harris County could also be sustained under Subdivision 4, Art. 1995, R.C.S., against the pleas of privilege of both corporations provided that a cause of action against either of the resident defendants was proven by a preponderance of the evidence, since the cause of action alleged against all the defendants arose out of the same transaction and the causes of action alleged against R. N. Adams Construction Company and Harry Newton, Inc., were so closely related to the causes of action against the resident defendants that they may be joined for venue purposes in order to prevent the application of the 'rule intended to avoid a multiplicity of suits.' Atlas Roofing Company v. Hall, 150 Tex. 611, 245 S.W.2d 477 (1952); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747 (1923).

Since no findings of fact or conclusions of law were filed by the trial court, this Court must indulge every reasonable presumption in favor of any fact findings which will support the judgment of the trial court. Bucker & Sons v. Allen, 272 S.W.2d 929 (Tex.Civ.App., Austin, 1954, writ dism'd.).

Appellants contend that such a presumption should not be applied in this case in support of a finding that they failed to prove by a preponderance of evidence a cause of action against J. V. Harrison Truck Lines, Inc., because during the course of the trial the trial court stated that the failed to see the relevancy of proof of a cause of action against that company and that he didn't see that the acts or omissions of the driver would be pertinent facts at the hearing on the pleas of privilege since the plaintiff must prove some act or omission on the part of the party filing the plea of privilege constituting negligence so as to make that party a joint tort feasor. Appellants contend that the trial court would not permit the full and complete development of the venue issues in the case because the 'mind of the Court was foreclosed against retaining venue in Harris County, Texas, under Subdivision 4 of Article 1995.'

The record reflects that subsequent to the remarks of the court referred to, he permitted appellants to fully develop their case, admitting all depositions in full and listening to such portions of the depositions as any of the parties cared to read. The judgment recited:

'* * * and the Court proceeded to hear the evidence, the deposition testimony, the Pleas of Privilege filed by both Defendants, the controverting affidavits filed on behalf of the Plaintiffs and the argument of counsel, and the Court, having considered all of the evidence, is of the opinion that the Pleas of Privilege filed herein on behalf of Defendants, Harry Newton, Inc. and R. N. Adams Construction Company, should be sustained; * * *'

We cannot sustain appellants' position and must consider that the trial court found that appellants failed to prove a cause of action against either of the resident defendants. The rule to be followed is set out in Banks v. Collins, 152 Tex. 265, 257 S.W.2d (1953) in these words:

'In any event the rules announced in Compton v. Elliott, Tex.Com.App., 126 Tex. 232, 88 S.W.2d 91, 95, are controlling and should be followed by the Court of Civil Appeals. The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case. If the record on appeal raises the question of the insufficiency of the evidence to support the judgment of the trial...