Milligan v. Southern Express, Inc.

246 S.W.2d 662, 1952 Tex. App. LEXIS 1962

• Court: Court of Appeals of Texas
• Decided: January 4, 1952
• Docket: No. 14456
• Status: Published

Opinions

CRAMER, Justice.

Appellants, residents of Grayson County, Texas, filed this action in the District Court of Grayson County, Texas, alleging that on or about May 29, 1948, in Dallas County, Texas, they suffered personal injuries and property damage as a result of a collision involving their automobile and a truck belonging to- appellee, which collision was further alleged to be the direct and proximate result of the negligence of appellee, its agents, servants, and employees.

Áppéllee filed its plea of privilege to be sued in Dallas County, Texas,' its corporate domicile, which plea appellants controverted, alleging venue lay in Grayson County, Texas, under subd. 23 of art. 1995, R.C.S., Vernon’s Ann.Civ.St. art. 1995; subd. 23, in that appellee maintained an “agency or representative” in Grayson County, Texas.

After a hearing on the plea of privilege, in which evidence of two witnesses was introduced by appellants, the plea of privilege was granted, to which ruling of the court this appeal has been duly perfected.

Appellants attack the court’s action with one point of error, to-wit: “On the undisputed evidence before it, the trial court erred in holding that venue as to< appellee was properly laid in Dallas County, Texas, under subdivision 23, of Art. 1995, Revised Civil Statutes of Texas of 1925.”

Appellee counters that the trial court correctly held venue in Dallas County, under subd. 23, Art. 1995, R.C.S.

Only two witnesses testified, both for appellant. The first witness, G. V. Snowden, a former employee of Northeast Texas Motor Lines, testified in substance, material here, that in connection with his employment with Northeast Texas Motor Lines he performed duties for appellee as follows: He accepted orders for the hauling of freight, picked up and delivered freight, collected money, made charges for services rendered by Southern Express, Inc.; that his Company audited and inspected Southern Express, Inc. books, and Southern Express, Inc., inspected the books kept by him for Southern Express; that he entered into oral contracts for the removal of freight into1 and out of Grayson County for Southern Express, and Southern Express had control over him as to how he handled freight; he quoted rates to prospective customers of Southern Express.

Loren Mangrum testified in substance, material here, that he was district manager for Northeast Texas Motor Lines and assumed the duties of witness Snowden when Snowden quit his position; that his office accepted orders from customers for freight in the name of Southern Express, but that the freight was picked up by Northeast Texas Motor Lines through contract they held with Southern Express for that purpose; that if someone called up and had freight for Southern Express, they had authority to accept that order for Southern Express and to bill that person for Southern Express; also to pick up and deliver freight for Southern Express, and to collect money and collect charges for Southern Express. He is directly responsible to Northeast Texas Motor Lines, and Northeast Texas Motor Lines is in turn responsible to Southern Express. Southern Express had authority to tell them how to keep the books, and have presented rules for their keeping. There has always been another agent (at Denison) in Grayson County for Southern Express; Southern Express, Inc., is a common carrier and operates trucks daily into and through Grayson County, Texas.

It was undisputed that appellants reside in Grayson County, Texas.

• Southern Express introduced their contract with Northeast Texas Motor Lines, which after reciting it was a common carrier of freight by motor vehicle desirous of contracting for depot facilities and a pick-up and delivery service, in substance provided that Southern Express agreed to pay Northeast Texas Motor Lines ten cents per cwt., with modification for amounts over 10,000 lbs.; and Southern Express was to pay B. T. Brown $15 per month for dock space and also monthly phone bill, but no long distance calls; Telephone 565 C.O.D. cards to be made when deliveries are made; all money collected to be reported and remitted each week to 3131 Oakland Street, Dallas, Texas, with copy to Paris office of Northeast Texas Motor Lines; freight on hand to be reported on Form FA-24; Northeast Texas Motor Lines to use forms furnished by Southern Express, Inc.

The contract also contains the following provisions: “(11) It is the intention of the parties by this agreement that their relationship shall be that of independent contractor and contractee; that in the event any claims or suits are made or filed against the Company arising out of the operation of said depot or said pick-up and delivery service, or the performance of this contract. Contractor agrees -to defend the Company against such claims and suits, and to hold the Company harmless for all loss and costs, damage, expense, and liability in connection therewith.”

Both parties assert that the only question involved is one of law for this Court to decide, and that there is no dispute on the material issue of facts.

It has been held that the venue statute does not attempt to limit the power of an agent to any particular phase of the principal’s business. General Motors Acceptance Corp. v. Lee, Tex.Civ.App., 120 S.W.2d 622. Another corporation may be the “agent or representative” of the defendant corporation. Painter Bus Lines v. Carpenter, Tex.Civ.App., 146 S.W.2d 278.

In determining whether Northeast Texas Motor Lines is an agent or representative of Southern Express, Inc., or an independent contractor, the facts which show the manner and kind of work actually performed between the parties, as well as the contract itself, are to be considered.

From a consideration of all the evidence we have concluded that the duties of Northeast Texas Motor Lines under its contract with Southern Express, Inc., cannot be delegated to an independent contractor, since they are a part of appellee’s duties as a common carrier. As a common carrier, appellee’s acceptance of freight either through its own employed station agents or through other authorized persons or corporations, made it liable for loss or damage to such freight from the time of such acceptance; and such liability cannot be by it, through contract, shifted to an independent contractor, such duty being in effect a nondelegable duty of a common carrier. When Northeast Texas Motor Lines contracted with Southern Express, Inc., to perform its nondelegable duties to shippers, it, as a matter of law, made the Northeast Texas Motor Lines its agent or representative in connection with the performance of such nondelegable duties, within the meaning of Art. 1995, sec. 23, R.C.S.

“The relation begins 'when a bill of lading is issued or when goods are received to be carried, * * 8 Tex.Jur., p. 40.

“It is the primary duty of a common carrier to provide facilities and appliances reasonably sufficient for the prompt and proper transaction of its business, and in doing so it must look to the volume of business at the various points upon its line and anticipate and make suitable provisions for the amount of business which may reasonably be expected.” 8 Tex.Jur., p. 43.

“A duty rests upon common carriers to provide suitable places for the safe reception and delivery or keeping of goods.” 8 Tex.Jur., p. 45.

See also 23 Tex.Jur., pp. 573, 574, Independent Contractors, sec. 24, 26.

In addition to the above, it is undisputed that Southern Express, Inc., has an agent or representative at Denison, in Grayson County.

For the reasons stated, the trial court erred in holding that appellee Southern Express, Inc., has no agent or representative in Grayson County, within the meaning of subdv. 23, Art. 11995, R.C.S. Its judgment is therefore reversed and, the evidence having been fully developed, judgment is here rendered overruling appellee’s plea of privilege.

Reversed and rendered.

BOND, C. J., dissents.