70 S.W.2d 244 | Tex. App. | 1934
This appeal is from an order overruling the plea of privilege of appellant to be sued in Bexar county, where its principal office or place of business is located. Appellee's suit was for personal injury damages resulting from a collision of an automobile in which he was riding with a motorbus owned and operated by appellant. Appellee duly controverted the plea of privilege and maintained venue in Bell county under subdivision 23 of article 1995, which provides that "suits against a private corporation * * * may be brought in any county in which * * * such corporation * * * has an agency or representative." The controverting affidavit and appellee's petition which was made a part thereof by reference, both alleged that appellant was a private corporation and maintained a local office in the city of Temple, Bell county, Tex., with B. Bradley as its local agent or representative in charge.
The evidence on the venue hearing showed that appellant rented a building in the said city of Temple, which it used as a passenger depot and ticket office; that B. Bradley was in charge of the office and sold tickets which appellant honored on its bus lines. No testimony was offered to show that appellant was a private corporation.
It is the contention of appellant that since appellee failed to prove that it was a corporation, the court erred in overruling its plea of privilege. The pleadings on the venue issues, particularly the plea of privilege itself, admitted that appellant was a private corporation; and the rule is settled that a fact admitted in pleadings need not be proved, which rule applies to pleas of privilege. Ogden v. Bosse,
Appellee sued "Southland Greyhound Lines, Inc., defendant," in the district court of Bell county, Tex., alleging "that defendant is a private corporation duly incorporated *245 under and by virtue of the laws of the State of Texas, and that it is a common carrier engaged in transporting passengers for hire and operates motor busses over many of the highways of this State, and particularly over the highways between the cities of Ft. Worth and San Antonio, and in and through Bell County, Texas, and has and maintains a local office in the City of Temple, Bell County, Texas, with B. Bradley as its local agent in charge." Appellant filed its plea of privilege in statutory form, the caption reading as follows:
The plea of privilege began, "Now comes the defendant, Southland Greyhound Lines, Inc., by Clem C. Countess, its duly authorized attorney of record, in the above entitled and numbered cause"; and alleged (1) that "this defendant is not now and was not at the institution of this suit" a resident of Bell county; "but that defendant's principal office and place of business is now and was at the time of service of process on this defendant" in the city of San Antonio, Bexar county, Tex.; and (2) "that no exception to exclusive venue in the county of one's residence provided by law exists in said cause." The "defendant" prayed that "the above cause be transferred" to Bexar county; and the plea of privilege was signed, "Clem C. Countess, Attorney for defendant, Southland Greyhound Lines, Inc." The affidavit appended to the plea of privilege recited that "on this day personally appeared Clem C. Countess, attorney of record for Southland Greyhound Lines, Inc., defendant in the above entitled and numbered cause," and was signed, "Clem C. Countess, attorney for defendant," and was sworn to and subscribed before a notary public.
The only "defendant" named in the petition of appellee was "Southland Greyhound Lines, Inc. * * * a private corporation." Appellee could only recover of and from "defendant, Southland Greyhound Lines, Inc., a private corporation." No other person or legal entity was made a party to the suit. The caption to the plea of privilege identified the parties to the suit as Frank Taggart and Southland Greyhound Lines, Inc., and identified the number of the suit and the court in which the suit or proceeding was pending. The purpose of a caption in a judicial proceeding is to identify the parties to the suit or proceeding and the court in which the suit or proceeding is pending. The rule is well settled that where an affidavit is required in the course of a judicial proceeding, good practice requires that it have a caption specifying the parties and the cause or proceeding; and the test applied in determining the sufficiency of the caption is whether the affidavit is identified sufficiently to support a conviction for perjury based thereon in case of its falsity. Munzenheimer v. Manhattan Cloak Co.,
But appellant contends that since its plea of privilege was in statutory form and alleged *246
that "none of the exceptions to exclusive venue in the county of its residence exists in this cause," it amounted to a denial under oath that appellant was a corporation; and that appellee was therefore required to prove (1) that appellant was a private corporation; and (2) that it had a local agent or representative in Bell county, in order to sustain venue there. As supporting this contention appellant cites the case of Poynor v. United Producers' Pipe Line Co. (Tex.Civ.App.)
"To hold that the plea of privilege (which, as stated, necessarily includes the affidavit) is a denial of the corporate existence of appellant, is to hold that contradictory statements in a pleading are to be construed as alleging a fact favorable to the pleader's case. Such a holding would be contrary to established rules. It is our opinion that the plea of privilege should not be construed as a denial of the corporate existence of appellant. Subject to one, or possibly more, exceptions not applicable here, the allegations in a pleading which, but for same, would require proof by the adverse party, need not be proved, but are treated as established facts. It was therefore not necessary even to introduce the plea of privilege in evidence. Ogden et al. v. Bosse,
To the same effect is the holding of this court in the case of Vilbig Motor Freight Lines, Inc., v. Jenness (Tex.Civ.App.)
In the instant case both the plea of privilege and the affidavit appended thereto say that appellant is the defendant corporation named in appellee's petition and suit, and no good reason exists why this court should gainsay that fact; nor place upon appellee the unnecessary and useless burden of proving a fact which the pleadings admit. Nor does the language, "no exception to exclusive venue in the county of one's residence provided by law exists in this case," as used in the plea of privilege and the statute, amount to a denial (in view of the pleadings admitting that fact) under oath of the corporate existence of appellant. To so construe the language would permit appellant to blow hot and cold in the same pleadings, because the aforementioned language of the plea of privilege and the affidavit appended thereto, taken in connection with appellee's petition and suit, clearly states or admits that appellant is the defendant corporation named in appellee's petition and suit; and from the language used it is manifest that counsel who made the affidavit not only intended to admit, but to positively swear that appellant was the defendant corporation named in appellee's petition and suit. And since appellant thus admitted its corporate existence as alleged in appellee's petition, the allegation that "no exception to exclusive venue," etc., merely put in issue the question of whether appellant had a local agent or representative in Bell county, which fact appellee sufficiently proved on the venue hearing.
The judgment of the trial court will be affirmed.
Affirmed. *247