Douglass v. Flintkote Co.

YOUNG, Justice. . Appeal is from an order sustaining the venue plea of defendant, Flintkote Company, and transferring the cause to McLen-nan County, the place of its residence. Joined in the suit was T. H. Davenport, a resident of Dallas County; plaintiff alleging, in substance, that in April 1945, the roof of her apartment house became worn and leaky, which fact was made known to Davenport, a roofing contractor, who, on inspection, advised plaintiff that she was in need of a new roof; making various representations and guarantees of the satisfactory qualities of the Flintkote ¡material to be used;- that Davenport undertook and completed said installation and was paid $425; that when fall rains set in, the new roof leaked and admitted water into the apartment, necessitating a redecoration of two upper rooms at an expense of $350; that the consideration paid to Davenport for the roofing job had wholly failed, praying for $750 damages, etc. Concerning nonresident defendant, Flint-kote Company, and its connection with the transaction, plaintiff alleged that such concern was doing business under an assumed name, with unknown owners, but operating in the City of Waco, McLennan County, with an office and agent, in person of F. K. Creswell, “upon whom service of citation might be had * * that, in course of conversations preliminary to letting the job to Davenport, he told plaintiff that he “was the representative of a company that put out one of the finest roofs on earth,” who would give her a “gold bond guaranteeing said roof for at least a period of 30 years,” and “that he, Davenport, would personally oversee the installation of said roof along with other laborers and representatives of the other defendant, Flintkote Company.” Plaintiff’s controverting affidavit, to which petition was attached and made a part, alleged that Flintkote Company was a foreign corporation, without right to do business in the State of Texas; that venue of this cause arose in Dallas County under provisions of sec. 27, Art. 1995, Vernon’s Ann.Civ.St., in that, said work was done in Dallas County, where all fraudulent acts were perpetrated upon plaintiff; and that said company was acting by and through its agent (defendant Davenport) in all the things that were done in Dallas County. Errors of the court in sustaining the plea of privilege, charged that appellant had satisfied all requirements of the venue law by (1) alleging and establishing a cause of action against the resident defendant, Davenport; (2) by alleging that defendant, Flintkote Company, was a foreign corporation, which allegation had not been denied under oath; (3) by alleging that such company was a nonresident corporation, which was not denied under oath; plaintiff also establishing that her cause of action, or a part thereof, arose in Dallas County; (4) Flintkote Company, if not a nonresident corporation, was an association, the proof showing that her cause of action, or a part thereof as to it, arose in Dallas County; also showing the existence of an agency or representative in said county. The allegation that defendant company was a foreign corporation appears for the first time in plaintiff’s controverting affidavit. A ground of venue thus stated in the particular affidavit, which is foreign to the cause of action as declared upon in the petition, cannot be availed of to defeat the plea of venue. 43 Tex.Jur., sec. 88, p. 818. The cause of action alleged in the petition must control, and proof upon the venue issue must be confined to those material matters common to both controverting plea and petition; the affidavit, under Rule 86 (old Art. 2007), tendering only such issues as are made by the petition. Austin v. Grissom-Robertson Stores, Tex.Civ.App., 32 S.W.2d 205; Casebolt v. Waldron, Tex.Civ.App., 160 S.W.2d 309. In the present appeal, therefore, any allegations that defendant company “is a foreign corporation” must be disregarded; and even had. the fact been properly alleged, there was an entire absence of proof. “The venue facts which a plaintiff, desiring to Sue a defendant outside the county of defendant’s domicile, must allege and prove, if the defendant asserts his privilege, are [637] those which are stated in the particular exception in article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff's petition.” (Italics ours.) Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93. Nor were the other venue requirements of subdv. 27 established, except that such cause of action, or a part thereof, accrued in Dallas County. “In order for appellee, who relied upon said subdivision 27 of the venue statute, to defeat defendant’s plea of privilege, he must have both pled specifically and established by proof that, (1) appellant was a (foreign) corporation and that it was doing business in Texas at the time the cause of action accrued; (2) that the cause of action, or a part thereof, accrued in Wharton County; and (3) that, at that time, appellant had an agency or representative in that county. These issues of fact must be proven in the usual way in which proof of the allegations of any other fact is required to be made by the party upon whom the burden of proof rests.” Home Ins. Co., etc., v. Barbee, Tex.Civ.App., 166 S.W.2d 370, 371. In this connection, the agency or representative requirement of- subdv. 27 “has reference to one who is subject to control of the corporation and authorized to act on its behalf in promoting the corporate affairs and purposes. * * * ” Shamrock Oil & Gas Corporation v. Todd, Tex.Civ.App., 166 S.W.2d 766. Concerning' this phase of plaintiff’s case on the hearing, a deficiency exists both in pleading and proof. It is proper to observe here that, to the case made by appellant, only subdv. 4, Art. 1995, appears applicable, same providing in part that “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides”; and, in point one, appellant directly invokes the benefit of exception 4. While we are of opinion .that plaintiff has not alleged a joint cause of action involving the nonresident company within the meaning of subdv. 4, 43 Tex. Jur., sec. 125, p. 869; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Hammonds v. Houston Electric Co., Tex.Civ.App., 169 S.W.2d 765, the point need not be labored. Texas Rules of Civil Procedure, Rule 86 (old Art. 2007), provides that “If the plaintiff desires to controvert the plea of privilege, he shall within ten days after appearance day * * * file a controverting plea under oath, setting out specifically the groumd relied upon to confer verme of such cause on- the court where the cause is pending.” (Italics ours.) The quoted rale has been construed to mean that a plaintiff must prove as well as specifically plead the venue facts upon which he relies to overcome the plea of privilege. Otherwise stated, appellant cannot rely on appeal upon any exception to the venue statute which he has not definitely alleged in his controverting affidavit and sustained by proof. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63; Merchants Fast Motor Lines v. Levens, Tex.Civ.App., 161 S.W.2d 853. Moreover, resident defendant, Davenport, through an extensive examination on the trial, denied liability, though much testimony was adduced in support of a cause of action. Where evidence is conflicting on issue of resident defendant’s liability in the hearing and determination of a nonresident defendant’s plea of privilege to be sued in county of his residence, judgment sustaining the venue plea must be affirmed. Forester v. Foreman, Tex.Civ.App., 171 S.W.2d 190, Syl. 3. See also Compton v. Elliott, supra; Taylor v. Fort Worth Poultry, etc. Co., Tex.Civ.App., 112 S.W.2d 292; Sisco v. Sklar, Tex.Civ.App., 113 S.W.2d 999. The order of transfer, upon careful review is affirmed.