*1 case trial Rather their court. tried operation their
on the theory More- damaging one.
business was to no appel-
over, showing here that there no any manner bene-
lants’ business was in Lake- Town ficial to citizens of the stated, Also,
view. have heretofore as we probative
there nature is evidence of a support judgment record to public rather appellants’ is a business private
than nuisance. foregoing con- with our
In accordance trial court judgment of the
clusions, the there extent
is modified to portion thereof
omitted therefrom the further con-
enjoining appellants from upon operation business
tinuing the which emits appellants premises of the gases, which
noise, fumes, dust, odors or peace, health,
spread affect the to and nearby adjacent using
welfare of those so purposes. As residential
properties for the trial court
modified, judgment
affirmed. INSURANCE COM- FUND
FIREMAN’S PANY, Appellant,
v. al., Appellees. McDANIEL et
Mabel ROSE, Appellant,
L.D.
v. al., Appellees. McDANIEL et
Mabel DURHAM, Appellant,
Wayne Appellees. al., et McDANIEL
Mabel
Nos. 6172. Appeals of Texas. of Civil
Court
July 17, 1959. Rehearing Sept. 9, Motion
On
§61 *4 Johnson, Stanfield, Guthrie & Dallas, for Fireman’s Fund Ins. Co. Scarborough, Black Tarpley, Abilene, & for Rose. Price, Kelton,
Strasburger, Miller & Martin, Dallas, for Durham. McDaniel, Fairchild, Center, Hunt & Johnson, Stanfield, Dallas, Guthrie & McDaniel et al.
HIGHTOWER, Justice.
This is a venue matter. It concerns the separate appeals, three captioned, as above separate from three of the trial orders court overruling separate three pleas of separate after hearings on had plea. each opinion This inis lieu of our opinion former 5, 1959, which has June been withdrawn. 9, 1957, April Mabel McDaniel and On County, McDaniel of Shackelford Dean Texas, Evelyn husband, M. Stevens and Texas, County, Nolan in- B. R. Stevens of Shelby suit in the District Court of stituted Texas, County, Fund In- Fireman’s Company, foreign corporation surance do- permit Texas, ing business under a Wayne Durham, agent of Fireman’s Company. Fund Insurance The 16,230 in the trial numbered court and is McDaniel, styled Mabel et al. v. Firemаn’s Company, et Fund Insurance al. The suit policy fire was on insurance issued Rose, company alleged L. D. cover rig against an oil the hazard of fire. alleged rig totally Plaintiffs was de- stroyed Throckmorton, fire near Throck- County, Texas, 1, 1957, morton on March recover certain conduct on in connection entitled his they are and that alleged They with litigation pending him- then policy. between amount face name self plaintiffs issued in Shackelford Coun- policy was that while the ty. were alone, plaintiffs of Rose controversy the material to at all times It is interesting observe that none of D.R. of one community survivor heirs and parties were Coun- residents of been a alleged to have deceased, McDaniel, ty at the time the The suit was instituted. part- was Rose; rig oil partner principal office and Texas residence proper that under nership property County. Fireman’s Fund was Dallas al- proceeds accounting all partnership agent, Durham, Its Tay- was a resident insur- fire policy on leged due to be County. lor Rose awas resident оf Shack- alone. to them ance are due County. elford policy The insurance ask- privilege, plea of duly filed its which the suit brought was sold to be sued ing that Taylor County. Durham Texas, which of business principal place loss of rig alleged to have occurred defendant, County, is Dallas *5 County. Throckmorton The McDaniels privi- of Durham, plea his duly filed Wayne (plaintiffs) lived respectively in Shackel- county of his asking to be sued lege, ford and Nolan Counties. County, Texas. Taylor residence privilege were controverted pleas of Both up taking Before points Fireman’s Fund’s trial court. and overruled error, of dispose we first of McDaniels’ counterpoint that Fireman’s Fund waived plaintiffs’ claim Rose denies the D. L. plea its privilege. They say: of any right, they have and that partnership of alleged to proceeds title or interest original petition “Plaintiffs’ filed was claims and policy sued on be due on April 9, the trial court on 1957. On policy himself. to proceeds of said entire April 27, 1957,appellant filed plea of its privi- plea of Therefore, subjеct its own to privilege original and its answer mak- Company Fund lege, Fireman’s ing party a subject new to the [Rose] party made a to D. L. Rose asked plea privilege. May 2, of On trial court did after which the cause appellees duly plea controverted said plea privilege of having first overruled privilege May 25, of and 1957, upon Fund. of Fireman’s hearing, full the court overruled said ' plea privilege plea to privilege filed of his as shown Rose then said or- residence, county overruling plea. his der appel- said The be sued County, open Aft- duly Texas. lant in excepted court which is Shackelford to plaintiffs later overruling plea, was filed plea this at er did not petition made original give appeal. their time notice of After amended They sought plea also. party privilege defendant was overruled on Rose damages accounting, May 25, 1957, appellant partnership sought and cussed hereinafter. him, etc., will be more On this same fully day dis- was party granted to this leave make suit and * [*] * D. L. Rose cita- filed their cause of tion D. plaintiffs making issued R. was Rose Rose, filed contro- party prayed appel- also their hini a * * * plea privilege. his lant’s verting affidavit to answer. After plea privilege, process its own Fire- was Subject to citation issued and had plea. next controverted Rose’s making served on D. L. Rose him man’s * * * plaintiffs suit, al- party Fund and appellant Both * * * pleas to the effect that was filed its appeal filed notice of so estopped asserting privilege is, his appeal therefore, from bond. It shown County by plea in Shackelford virtue of that after of privilege was
3@3 appeal preponderance that Fire- the evidence overruled, notice before filed, Company not man’s was Fund Insurance appeal bond given or was agents jurisdic- representatives had general invoked appellant County, at all times material by seeking leave the court tion of repre- lawsuit, obtaining agents but that these party, implead the third transacting the actually sentatives were and obtain- such leave granting order company’s sаys impleading It business there.” process and ing service of therefore, proved. support facts were not cf this Appellant, In party. the third Engineering contention it Co. privilege.” cites Presstite plea of waived its Richards, Tex.Civ.App., 243 S.W.2d and cases there cited. the al acquainted with areWe party if a leged that venue is waived rule “represen “agency” or The words privi plea seeking remove a case on a general has been tative” as used in Sub. 27 affirmative re lege asks for and obtains subject ly held to refer to one who is plea privilege acted lief before the corporation, and authorized control of the Kurtz, Tex.Civ.App., 228 on. Whisnant v. corporate promoting to act on its behalf However, S.W. 977. that is not situa purposes in of suit. affairs and duly tion in this case. Fireman’s Fund application foreign and domestic is to subject plea filed its corporations construing alike. the words In plea privilege, filed its answer in V.A.C.S., as used in Sub. 23 of Art. pointed which it out to the trial court Supreme * * recently Court has stated: Rose, pаrty, asserting that a third “ * opinion in our the statute refers proceeds alleged claim for the identical to a situation in which the business of the *6 policy be due on the fire insurance which is, regular in more or defendant less seeking. Having McDaniels were done form, permanent actually conducted in the plea this after its was overruled the same suit, county party pos in or one which a was not waived. The error in the counter sessing powers broad from the defendant point, overrule, which we clearly is dis county, being resides in the the one instance Super-Cold closed in Stark v. Southwest ‘agency’ ‘repre that of and the other of Co., Tex.Civ.App., 402, 239 S.W.2d mand. Milligan Express, sentative’.” v. Southern overruled. Inc., 315, 194, page 151 Tex. 250 S.W.2d at 198. There can be no doubt that same Briefly, the crux of Fireman’s Fund’s meaning applicable In Sub. either points of error is: appellees case the have met the test. “(1) That the evidence failed to es- April petition, filed original Plaintiffs’ appellant tablish that agency had an agency have 9, 1957,alleged appellant to an representative Shelby or County in Shelby County at that representative in or meaning within the Arti- Sub. 27 of material, to suit. all times and at date 1995, cle (2) Vernon’s Ann.Civ.St. incorporated allegations were in These That said Sub. 27 is void. (3) That plea controverting the affidavit said Sub. has been amended or re- appellant Subsequently, re- privilege. pealed.” affirmatively following re- plied July (17) In “Since argument quested its admissions: point under its first present continuously until says: Fireman’s Fund plain- “In order for defendant, time, tiffs Fireman’s Fund In- right to have the to sustain venue in Shelby County, Texas, Company, agent has had an or Fire- surance County, Shelby man’s Texas.” Company’s representative Fund in right Insurance through May in January residence, “From (18) its defendant, plaintiffs 6, 1957, burden was on Fireman’s Fund prove by In- actions affording business for Company, doing a wider surance has been foreign corporations doing busi- County, (19) within Texas.” Shelby defendant, Insur- ness in Texas than afforded “The 23 of corporations con- into domestic under Sub. Company, entering ance has amended, (3) 1943. And resi- said article as tracts of with various fire insurance Shelby Legis- adopted by that the County, Texas, amendment Shelby dents of in years respect Texas, to domestic County, more lature than three corporations business.” as is now shown Sub. regular course of its suit, when 1532 Ver- (20) with Art. “At material to this considered all times pro- defendant, non’s Ann.Civ.Stats. of which Fireman’s Fund repre- vides : Company, agency or had had County, Shelby
sentative Texas.” corporation (foreign), “Such on Other were that two of admissions obtaining permit, shall have and appellant’s Shelby agents residing Coun- enjoy rights all privileges ty at all material to the suit. times conferred laws of State corporations organized argu- under the effect of Fireman’s Fund’s is, laws of this ment State.” notwithstanding admis- its sions, proved agents, was not Art. Corporation And 8.02 Business agency representative Act, V.A.T.S., provides: any of its admitted in such business did county; that all business done corporation “A. A foreign through may such media done have been have shall received a certificate of solely Shelby; in counties other * * than * authority under this Act shall the business admitted to been done enjoy same, greater rights but no Shelby County may havе been done privileges corpora- as a domestic * through agents, repre- there * agencies, or tion sentatives located in other than counties necessarily implies Legislature Shelby. has, effect, amended Sub. 27 so as to *7 require foreign corporation before a argument tenable. is not
Such can sued controverting be of the original petition county outside and State, residence in this having must have an company with charged the affidavit representative agent or county in representative” in the “agency an or action, where the and 27. cause or a of Sub. meaning within part thereof, must presumed have arisen have in that Fireman's is county, as is true of also domestic meaning phrase. cor- of such legal known porations. have admis made its It must be held many cases accordingly. See sions points last two discuss these to We Evidence, Digest, topic We Texas to the established- obeisance gether opinion that such admissions of the consequent reluctance of law event, support any court’s would, unconstitutional to declare statute courts finding thereon. necessary clearly only where to a decision case, dispose we first points last conten two Fund’s repealed, been knowledge, Sub. has heretofore 27 tion not, our so, However, in (2) to what extent. con Their is if in Texas. substance raised repeal V.A.C.S., either the or the constitu sidering un- Art. is Sub. 27 comparison tionality of Sub. of its meaning within constitutional provisions with those 23 pertinent clause the 14th amend- protection Sub. equal necessary. Such subdivisions are States Constitution becomes United ment
365 heret “An prescribing footnotes Act accordingly fixing set out in the venue against of suits foreign cor- o.1-2 porations, joint companies stock as- or establishing specifically Early legislation sociations, corporations acting or or pro- corporations suits venue for associations, doing business within un- or corporations “created vided that State, this provide and to mode any State, other or the laws of the der process serving corpora- on such any county, cоurt may or be sued State tions or associations. having jurisdiction this State county subject matter, any where Leg- and in “Sec. Be it enacted 1. part ac- the cause of thereof That action or a islature the State of Texas: crued, any county foreign, public corporations, or in such cor- private where or poration representative, associations, companies has an agency, joint or or stock principal county or in corporations in which or or acting associations situated.” corporation incorporated by office of this the laws of Acts, 1874, G.L., State, 14th Leg., Vol. ch. doing business within this State, p. any may be sued in court within jurisdiction having State over With such changes as indicated this subject in any county where matter incorporated Act was in the Revised Civil part cause of action or thereof Statutes of 21 of of 1879 as Sub. Texas county accrued, any or in where such any Art. as follows: “Suits rep- company may agency have an or private corporation, joint association or county resеntation in the in which company any stock may commenced principal may company office of such county in which the action or cause of situated, or when the defendant arose, thereof such cor- or in which corporation agent represent- has no or poration, company association or has State, ative in the then in the agency representative, which its where plaintiffs or either of them principal office situated.” (G. reside.” Leg., Acts of 19th 1885 modification of provision, without Such 9, p. 699). L. Vol. pertinent substance, for- carried here any pertinent modifica without This Act 1995, R. 23 Art. to become Sub. ward set out presently Sub. tion is amended, 1925, thereafter our C.S., footnote.2 courts inclined to view that said Sub. prescribed prior 1943, it be said could venue suits So be- corporations not discriminate foreign laws did both and domestic our corporations. domestic notwithstanding following legisla- foreign and tween *8 view, however, of 1885 enactment the tion: In * * * ** * repre agency a “Suits or had 1. Sub. then ” * * * * * * corporation, may private be sentative. county prin brought in which its in the “ * * * county situated; corporations, Foreign cipal in the or office is 2. Sub. 27. * * * part incorpo- public private or of action the cause in which or county arose; State, by the in or in which of and do- laws this thereof rated the may plaintiff State, ing the at the time cause the be resided within the business part arose, provided county any where or thereof the cause of in of such * * * any corporation, agen part accrued, has an thereof or action or county; or, company representative county may cy in such have an or where such * * * corporation agen representative, agency had no or in coun- the if the or representative principal cy ty office of such or in which the plaintiff situated; county may or, the the resided at when the de- time agent rep- arose, corporation no of action or thereof or cause has fendant may brought State, then the coun- coun in this then sentative ty plaintiff ty plaintiffs them, that in which or either of nearest resided where corporation time in which the at said reside.” 366 Legisla- that statements alluded to in above certain quoted
just it styled foreign Appeals place decisions Commission of and did ture intended dicta, separate purely relative 23 are obiter category to Sub. corporations ain venue such of corporations. statements are not within the rule domestic from and distinct stare decisis. this notwithstanding Subsequent however, Supreme Court legislation, our In we light foregoing, of Appeals of adopted four Commission has are agree unable that the amend 1943 substance, state, opinions either 23, conjunction ment to Sub. taken in Sub. provisions of to, appear that or 1532, supra, Arts. 8.02 and had effect corpora foreign apply to 23 continued amending repealing by impli of Sub. 27 of Water Heater Co. Pittsburg tions. cation, by necessity, or otherwise. 417, 1926, 282 Sullivan, 115 Tex. Texas v. legislature classify foreign right had the Powell, 576; Grayburg Co. v. Oil S.W. corporations separately from domestic ones 542; Texas- 354, 15 S.W.2d Tex. 118 and accord each different treatment. Wells, 121 Co. Louisiаna Power There is nothing here indicate that 978; Irr. Lakeside Tex. 48 S.W.2d speak. did not intend its acts of which we Co., 1926, 116 Tex. Co. v. Markham Irr. Although we no for see reasonable basis However, careful a S.W. 593. 28 existing, not, we are discrimination study these authorities of disclose alone, reasons authorized to declare unnecessary to have been statements to repealed. statute of amended or this state Therefore, are reached. decisions we We do not consider Arts. 8.02 and 1532 authority holding that no familiar with pertinent, held, it has been think we pred present our 23 or Sub. correctly so, such nature articles foreign corporations apply to acts ecessor place corporation, foreign intend to act aforesaid since the enactment upon procuring permit to do business relating for actions state, upon footing as the same domes corporations. against foreign corporations tic in the transaction busi Allison, 1908, 52
ness. Coca Cola Co. v. Tex.Civ.App. 113 S.W. n.w.h. are not unmindful We appellant’s accordingly We third ap overrule peculiarly decisis dóctriné stare point. plicable'in statutory construc matters generally will tion. adhere “The Courts however, by opinion, We are that has been followed a construction existing reason the conflicts between long line of decisions that has stood subdivisions, foreign corporations two time, theory period of long for a on the status, Fund’s are of Fireman’s holding had not been in accord if the deprived rights their constitutional legislative meaning intent with the laws, equal equally administered. would have been statute clarified amendment, or a different rule would inequalities first note some of We enacted. When statute been has excep administration of the two venue construed, especially of final re a court the terms tions even where similar. Legislature permits sort, the fact that the Bank As was held in Victoria & Trust Co. *9 subsequent through one or more it to stand 63, 216, Monteith, 138 Tex. 158 S.W.2d v. amendment, sessions, may without be re Rogers Poultry Egg Fort Worth v. & legislative sanction garded as con Co., 165, Tex.Civ.App., a 185 S.W.2d ap And of course the struction. rule will plaintiff maintain venue a de forcibly ply more even where the statute corporation fendant domestic outside of incorporated is re-enacted in a revision county principal its office is where located change.” substantial 23, without 39 Exception prove must under he a cause Tex.Jur. 174, recognized preponderance Yet when it is of action sec. 92.
367 county corporation It is not hearing. place where the evidence on the venue had a business, exception make of or in sufficient under that which officer its chief resided, ac- proof and, cause of prima person, a if mere facie a natural Exception 27 in county tion. But under the bemay where he resides or found; to, need broadly permitted here he would not but referred any cause of any proof actions foreign corporation make whatever of be brought hearing. any Southwestern action at the venue in the state. Tex.Civ.App., Greyhound Day, Supreme state Lines v. Court affirmed on writ corporation foreign 238 258. A S.W.2d of error Supreme thе United States Court county where it has may he sued (Justice Holmes dissenting) the stat- held ref- agency representative, without ute to be unconstitutional as a denial of residence, plaintiff’s county of erence to the equal protection of the law in this lan- suit whether the without reference to guage : a cause of enough is substantial “We very plain think it up actually proved could be statutes against foreign discriminate hearing. corporations, and in favor of domestic corporations individuals, and that began to about the courts Since 1910 . the discrimination is not theoretical unfavorably afforded react to treatment merely, but real and substantial corporations and the states to domestic * * *. It does [14th Amendment] corporations. foreign denied Southern prevent adjusting state from 287, Greene, 400, R. Co. 216 S.Ct. v. U.S. 30 legislation to differences in situa- 536; 54 v. L.Ed. Hanover Fire Ins. Co. tions or forbid classification in that Harding, 272 71 U.S. 47 S.Ct. connection, require but it does that the many L.Ed. 372. There are of course au- arbitrary, classification be not recognizing thorities distinction in this based on real and substantial differ- respect, corpora- between individuals and ence, having reasonable relation to generally. tions Bain Peanut Co. of Texas subject particular legisla- of the Pinson, 282 51 U.S. S.Ct. tion.” 482; Powell, Grayburg L.Ed. Oil Co. v. Tex.Com.App., 118 Tex. 15 S.W.2d subjects there “No doubt are toas decision, Mfg. The Saunders Power corporations admissibly may Saunders, 1927, Co. v. 274 U.S. separately classified from individuals 678, 679, 1165, appears S.Ct. 71 L.Ed. treatment, and accorded different a culmination of a cases series of subjects foreign also as to which cor- equal since the extending Greene case porations may separately be classified protection corporations foreign clause to from both individuals and domestic and we believe it to be decisive of the corporations differently. and dealt with question constitutional before There us. subjects But there other as to defendant, corporation, an Ohio admissible; such a course is not doing permit business under a in Arkansas. distinguishing principle being place Its of business was in Arkansas classification must rest оn differences County. It did no business and had no pertinent subject respect office, agent officer or elsewhere in the classification which the is made.” plaintiff, injured state. The while an em- ployee corporation in Arkansas Obviously, the discrimination oc County, brought against, and recovered by the 1943 casioned amendment to Sub. 23 of, judgment corporation in Saline great our statute not as that oc County. The Arkansas required statutes This, the Arkansas casioned statute. *10 actions of character, this if a however, do- is not the criterion. The fact corporation, mestic to be brought in a that a violation the constitution is not 368 apparently it. permitting distinguishing for the Saunders reason great a one is no case, wrong pointed obtaining presumption degree of to the the opinion
A mere
as to
gen-
were
validity
favor of
constitution
the
of statutes
which
arise if the
would
erally,
the
petitioner
measure of
to the failure of the
violated does not afford
particularly,
provisions.
duty
presumptions
to rebut
enforcing
its
Am.Jur.
88;
conformity
United
11,
Patton v.
p. 716,
with
rule in the Saunders
Vol.
Sec.
the
253,
276,
L.
States,
volition,
74
case.
next
50 S.Ct.
Of its own
court
281 U.S.
the
263; Looney
pointed
v. Crane
legislative
to a
Indiana
Ed.
70 A.L.R.
scheme in
Co.,
applicable
corpora-
230.
62 L.Ed.
casualty
245
38 S.Ct.
U.S.
domestic
differing radically
dealing
tions
from that
appellees say
if there ever were
The
corporations,
favorably
more
foreign
with
case,
any
then
teeth in the Saunders
as a basis for the
valid-
reasonableness and
Met-
removed them.
Brownell case (1935)
ity of the statutes.
York
ropolitan Casualty
New
Ins. Co. of
Brownell,
580, 55
294 U.S.
S.Ct.
recognition
full
We accord
ac-
involved an
general
309
state, valid or
Daniel et al. controversy
our
dis-
to
statutes of
hereinafter
cussed, it
necessary
not.”
that we set forth
peculiar
some of
his-
background
disposed
has also
This contention
tory.
appellees
unfavorably
to
490,
S.Ct. 680]
Saunders case
U.S.
[274
In 1949 D. L. Rose and R. D. McDaniel
thusly:
entered
a
agreement Albany,
into written
by coun-
County, Texas,
Shackelford
“The contention advanced
joint
for a
enterprise
defendant
plaintiff that the
for
drilling
sel
oil
business
well
provi-
impliedly
which was to
assented
later
partner-
culminate into
by re-
ship.
and refuted
sions is answered
The substance of the agreement was
foreign
holding that
peated decisions
Rose
necessary
towas
furnish the
obtaining
money
by seeking
on;
corporation
equipment
get
started
in a state
permission
parties
business
to do
each of the
was to be allowed
thereby
obligated
become
not
to withdraw a
does
certain amount of funds
object-
with,
estopped
comply
from
enterprise
on;
from the
monthly to live
provision in the state’s
to, any
ing
profits
that the balance оf the
would be used
with
repay
in conflict
investment;
which is
Rose
statutes
original
for his
the United States.”
Constitution
as soon
repaid
as Rose had been
investment,
original
his
partnership
was
the state
rests with
“It of course
to culminate wherein R. D. McDaniel would
of actions
prescribe the venue
own
of the assets of the business and
25%
the exercise
courts. But
brought
her
L.D. Rose would own
the assets
75%
others, must
power,
of all
as
of this
30,
April
the business. On
1956, dispute
limitations
with the
keeping
arose between Rose and R. D. McDaniel
the United
Constitution
which the
and each began to accuse the other of
Pro-
action.
places on state
States
taking large
money
amounts
fraudu-
excepted, but
cedural statutes
lently, and suit
Albany by
was filed in
Rose
conflict
like others when in
must fall
contract,
for cancellation of
damages,
limitations.”
those
etc., he alleging
partnership
had never
carefully
all state and
studied
We
culminated. R. D. McDaniel defended this
submitted
rules
decisions
federal
suit and filed a
cross-action
contentions,
support
their
McDaniels
accounting,
for an
damages, etc., and said
Em-
case of Watson v.
the recent
including
pending Albany, Texas,
suit was
at the
Liability
Corp., 348 U.S.
ployers
Assurance
time of the death of said R. D. McDaniel
166,
66,
denied con- claimants. also tentions of both It regard to the correct Without avoid- allegations tained of confession and validity as ness of our conclusions prayed that ance and various reasons 27, Exception 29a is not available of Sub. null and policy of insurance declared Rose where Fund this answer that Rose filed void. It was to here, company, two has not sued plea Shackel- his plead or more non-resident defendants plea County. filed the one ford Rose prima proved a cause of facie action ed and plea After this privilege. was cоntro- right such defendants one of party litigants the other each of verted against such maintain such action de party become a defendant to and he had excep more of fendant under one or filed, he also McDaniels’ cause simply Nor our venue tions to statutes. T.R.C.P., plea privilege, subject under answer Rule his virtue of Af- produce. “(4) successfully having urged to the motion McDaniels’ it was Albany court at that Fireman’s ter the court had announced plea privilege, going Company Insurance neither to overrule his signed and necessary proper party nor a doing before the order so filed, plea of subject Albany to his entered, pending so-called between he then McDaniels’ him in Shack- privilege, his the McDaniel heirs answer etc., partnership, consisting County, Texas, elford in which claims prior suit plea of a sought in abatement reason McDaniel heirs the same relief parties in Shack- pending between same Fireman’s Fund *14 adjudicata, plea Company seeking they of res that now County, elford are denial, bar, County, denial pleas Shelby in in general other in the court plea of partnership. Subject insur- having of to and Rose obtained the company’s jur- also contained from the privilege, this answer ance dismissal County Fund for against Fireman’s cross action isdiction of the Shackelford court, estopped insur- policy of from rig loss of the under the district now plea of overruling litigation Rose’s urging ance. The order the matters by signed Shelby County relitiga- privilege was thereafter suit Fire- already pending before court. It should remembered tion matters of appellees in the Coun- court of Shackelford man’s Fund is one district discussion, ty, appeal Cause No. Texas and that the Shackelford under McDaniel, only court County al. D. L. Rose v. Mabel et district court is parties and jurisdiction of the
that has controversy between the entire question think We Company Fund Insurance Fireman’s plea Mc whether his to the Rose waived heirs and Rose McDaniel him against Daniels’ of action cause there on Rose’s be transferred should action, immaterial, for to such cause of plea privilege.” of plea stated, of Rose filed no as heretofore plea privilege privilege at all. The of adopt themselves McDaniels In effect the Fireman’s he file was did counterpoint Fireman’s foregoing rival attempt interplead as a Fund’s him additionally: say Fund and the Mc McDaniels in claimant drilling rig destroyed “The by fire original against suit Daniels’ Fireman’s gave rise to the cause of action Fund. In the we circumstances do not have against company the insurance was de- question before us the whether Rose stroyed said March fire on 1957. any plea privilege waived to the Mc soon as the McDaniel As heirs were alleged against Daniels’ cause of action find able to out who carried the insur- him, rather we have before us the obvious (without benefit of assistance ance plea fact that Rose filed no office), they from Rose’s Fire- made whatsoever to such cause of action. Rose’s party man’s Fund suit at Al- plea contentions the Mc his reached bany, seeking try the whole contro- indepеndent Daniels’ and severable cause Upon versy one case. motion him of action cannot be sustained. Rose, the court struck same. The regard pleading by In contention that said court struck order estopped deny April 1, Shelby venue in rendered entered him, County quote Thereafter, April as to we in full for clar- Mc- 9, 1957, ity counterpoint heirs, April the 4th institut- Fireman’s Daniel Fund. were District These contentions made a this suit Court of ed County Shelby Fund’s affidavit controverting Fireman’s Company. plea privilege. Rose’s strik- The Albany ing A pleadings great as to of their court has discretion delay and whether permit ad joinder resulted considerable not to get- ditional expense parties, heirs the McDaniel in such its decision and back matters is con ting generally Fireman’s Fund served practical based on delay fair, orderly This into court in East siderations with a view to Texas. timely prosecution appellant should disposal pending benefited and he litigation. in East now interfere be allowed to heirs’ suit Texas with the McDaniel Fire prevented contention that Rose rеap- has He Fireman’s Fund. man’s abating Fund from Coun taken position ed of his the benefit ty suit is does not incorrect. There allowed not be West Texas and should subject to be an identity parties or of prejudice position change his prior pending. matter to abate for of the McDaniel heirs.” Tide Water v. Commis Oil Co. Railroad sion, Austin,
Actually, Tex.Civ.App. the instruments as shown 76 S.W.2d plea, (error ; refused) introduced in connection Eastland *15 effectively Davisson, made Tex.Com.App.1929, McDaniel never 13 S.W.2d heirs Albany 673; Co., suit party Haney Temple to the Tex.Civ. Fund v. Fireman’s Trust App. of the Austin, 1932, 891; leave place. in North the first Without 55 S.W.2d Morten, Tex.Civ.App. cross action they included their Texas v. court in Coach Co. Austin, an inter- parties, 1935, 263; petition, Benson v. as substituted 92 S.W.2d 71; party Fulmore, de- pleader as Tex.Com.App.1925, Fund of Fireman’s 269 S.W. days only ten fendant, they 82, Campbell, this Conn v. 24 and did 119 S.W.2d Tex. asking leave without before trial. Still issue cita- clerk had the court it served had Fund and
tion to Fireman’s aptly exception The rule days before only Fund six Fireman’s forth follows set in the Water Tide case trial, day would have return that so (76 page 554) S.W.2d at after trial. long “The general that in order for rule Upon at the court Al- motion properly brought one suit in court bany pleading from the such at- struck competent jurisdiction a sub- to abate tempt implead Fund and or- Fireman’s sequent suit, must abe substan- there parts pleading relating of such dered all parties, identity subject-matter, tial Company Fund Insurance strick- Fireman’s jurisdiction 1 Tex. is now settled. en, prejudice. it this without And did seq., 76, 77, p. et §§ Jur. purpose, express both in the as stated cited. But is like- there it cases order, delay prevent in the motion and rights of the wise that where the true Such in trial of the case. action parties not the second suit who were proper circumstances appear would parties to first suit are but second- question nothing to do with the has dependent upon ary rights to and Shelby County. venue in suit, parties to the first the fact of the parties to the second suit there provides: Rule 37 necessary parties who are trial, a case is called for “Before ad- prevent first suit from first will not necessary proper partiеs, ditional County abating second. Eastland suit, may brought in, parties be Davisson, Tex.Com.App., 13 S.W.2d plaintiff defendant, either 673.” may pre- upon terms the court such indicated, ; the court also at a nor in a As above scribe but not time man- lay delay unreasonably against Fireman’s trial that venue ner to found County Shelby under Sub. case.” Fund 374 Ann.Civ.Stats., and With McDaniels’ claims reference to
Art.
Vernon’s
Wayne
agent,
Mc-
Fireman’s Fund’s
venue
reason thereof
Durham,
upon
relied
against Rose
basis
Daniels’ cause of
County
prop-
That
venue in
proper.
Shelby
is that venue
County
such
therefore
was
erly lay
county against
such
in such
upon
sustain
4 relied
of Sub.
defend-
under
and that Durham is
or more
Sub.
“If two
finding reads:
may necessary
counties,
party
the suit so that venue
suit
ants reside in different
29a,
one of
lies
him
sub-
county
under Sub.
any
where
brought
ap-
court
stance
is that whenever there
The trial
of which
defendants resides.”
any
because
are two
opinion that
or more defendants in
parently was of the
repre-
brought
county and
suit is main-
Fund had
such
the fact that Fireman’s
such defend-
agency
tainable therein аs to
established
sentatives and an
ants,
necessarily
may
followed
maintained in
then such suit
necessary
county against any
such
and all
also a resident
company
4. parties
Sub.
meaning of
thereto.
within
contrary.
to the
The law is well established
Levens,
Lines v.
Merchants Fast Motor
stated our
We
heretofore
853; Reynolds-
and,
Tex.Civ.App.,
validity
161 S.W.2d
Sub.
views as
to the
Tex.Civ.App.,
Perry,
correct,
Kimberlin Oil Co. v.
should such statements be
con-
Somewhat
Durham in
S.W.2d 787.
could not be sustained
attention
call our
nection,
Shelby County
the McDaniels
circumstances.
decision
Supreme Court
regard
recent
Should we be incorrect
*16
Tex., 320
Drye,
S.W.2d
validity
have
v.
the McDaniels
of Sub.
James
conten-
supports their
They
say
plead
prove
case
and
to
nevertheless failed
County
proper
Shelby
tion that
is
Durham as would
against
cause of
venue
action
County.
against
Shelby
under
rules intended to
him in
the
sustain
as to
venue
suits,
multiplicity of
avoid a
since the cause
Exception
can apply,
“Before
29a
four
against
intimately
of
him
action
is
connect-
conditions must exist:
action
the
must be
against
ed
action
Fire-
with the cause of
against
defendants;
two or more
of
all
this
Fund.
do not so construe
man’s
We
them
county
must reside outside the
of
distinguishing
The
to
noted
case.
facts
be
suit;
proper
against
venue must
as
at
be
are
in such case two of
that
several defend-
least one of the defendants under some
suit,
actually
county
ants
resided in the
of
exception
rule;
general
to the
venue
and
proper
and
therefore held
under
it was
privilege
urging
defendant
his
the
must be
join
against
Sub. 4 to
the cause of action
necessary party
against
claim
the
the several out of
defendants with
proper.”
defendant
whom
is
as to
there,
action
those resident
the
of
cause
4.36,
Tex.Civ.Prac., Vol.
McDonald’s
sec.
being
intimately
them all
connected.
pgs. 412-413, and
there
cases
cited.
The fact
it would be
convenient
that
more
try
in one
that
all of these cases
suit and
allegations
The McDaniels’
of Fireman’s
prevent multiplicity
of suits
such would
liability
Durham’s
Fund’s
are in the
control the fact
if venue
does not
alleging that
alternative. After
Fireman’s
Shеlby County
as
is
to Rose
sustained as
policy
Fund is
them on
liable to
case
him it must
to McDaniels’
noted, McDaniels
hereinabove
then al
exception
under some
to Art.
be sustained
leged
acted as an
that Durham
insurance
mistaken in our belief
unless we are
part
broker for the hereinafter mentioned
privilege
plea of
did not reach
that Rose’s
nership
responsible for keeping
and was
action. United States
of
Steel
such cause
prop
partnership property insured. “Said
Co., supra.
Strong Drilling
Corp.
defendant,
This
v.
erty was
Fireman’s
insured with
Company. Said defend
been done.
Fund Insurance
has not
any
They
ess thereon.
different
Durham,
refer
two
responsible
ant, Wayne
is
recovery
al-
form
which
omitted
books
contain the
plaintiffs’
defeat
would
thing that
pleas.
legations
suggested
Fund
for such
defendant,
forms
Fireman’s
They
responsible for
authorities
submit
other relevant
no
Company, and is
is
being
support
policy
their contentions.
mentioned
the hereinafter
parties
of
name
one
defendant,
only;
plea
The
tracked
partnership
requirement
al
Durham,
direct cause
did
was the
T.R.C.P. It
Wayne
Rule
and the
lege
insurance
said
that Durham was not
resident
the conditions
plaintiffs’
County
men
of the
above
proximate
of all
on the occasions
cause
resident
allege
to be a
tioned.
It did
him
trouble and confusion.”
plea,
Taylor
“at
time
way, un-
Thus it is clear that there is no
same,”
with
including
filing
of the
pleaded,
Fund
der the facts
that Fireman’s
appellees’
all
authorities to
respects to the
jointly
be
Durham
liable
could
contrary
allegations to
we hold the
McDaniels,
jointly
severally
liable.
or
Moreover,
failed
McDaniels
sufficient.
allegations
The
that most Fireman’s
at
attention
call such omissions to the
might
liable
exclusion of
special exceptions
the trial court
Durham,
event
Durham liable
otherwise,
held to
and are therefore
thus
Fund is not.
There
error,
it was.
waived
if such
only
causes
alleged
alternate
regard
In
phases
to the matter of what
mutually
which are
exclusive.
litigation
should be
transferred
proof
McDaniels’ case fails
counties,
compliance
with Rule
pleadings
Along
as well.
their
89, T.R.C.P., it is the contention
Fire-
by them was
Fund,
evidence introduced
referring
man’s
Goodrich
Su-
requests
and the
written
for admissions
perior
Co.,
Oil
151 Tex.
245 S.W.2d
thereto,
answers
substance of
cited,
cases
suit in
merely
foreign
Fireman’s Fund is a
entirety, including
interpleader
*17
ac-
corporation
and
doing business
Rose,
engaging
tion
should
transferred
Shelby County;
agents
that
having
County
to Dallas
in accordance with the
Wayne
agent
Durham was an
of Fireman’s
following holding in
case:
the Goodrich
Shelby County;
Fund,
that
though not
Castleberry,
“As was said in Hall v.
in Fireman’s
policy
the
of insurance issued
supra [Tex.Civ.App.,
the docket are reversed interpleader was Fund’s judgment sustaining Fireman’s each is here rendered independent an Rose to against action pleas. court’s That privi properly plea which Rose filed his overrul- cause order in the numbered same lege. interpleader subject An action is the Mc- ing privilege to plea Rose’s the same rules other actions af- him is Daniels’ of action cause are, and we are now concerned with over- portion of order firmed. That par question indispensable necessary to the inter- ruling plea Rose’s Texas ties. Duval Ranch Co. v. pleader is re- action of Fireman’s Company, Tex.Civ.App., 301 S.W.2d here judgment rendered versed Fire As to the McDaniels’ claims district such action be transferred Co., only County. man’s Fund Insurance we have court of Shackelford been concerned with was whether venue Rehearing On proper Shelby County. As to Fireman’s interpleader way Fund’s ANDERSON, Chief Rose, con we have also Justicе. proper in cerned with whether venue Appellees appel and all of the Shelby County. Fund contends Fireman’s except lants Fund Insurance question should not be latter this Company Wayne Durham have sea court, re passed should be sonably rehearing. filed motions Pend for proper determination served for motions, however, they ing hearing However, County. we be Dallas courts joint motion, have filed herein their question. duty determine our lieve parties joined, all requesting their to withdraw said leave reference to McDaniels’ With the man rehearing for motions against Rose for breach of of action cause im date in issue consolidated causes agreement, accounting partnership *18 mediately. They represent settle apparent damages, it is for by agreement pend cases ment from the McDaniels’ claim is severable the mandate will ing and that issuance of Fund reason mo The motions to withdraw the aid it. his to be assert failure Rose’s granted, rehearing accordingly are tions his residence thereon dismissed, rehearing motions for should severed cause of action the mandate issue it is ordered that against Fireman’s claims McDaniels’ from immediately. Shelby County. and retained