WELLS v. HENSLEY.

WELLS v. HENSLEY.
1932 OK 511
12 P.2d 682
158 Okla. 152
Case Number: 20756
Decided: 06/28/1932
Supreme Court of Oklahoma

WELLS
v.
HENSLEY.

Syllabus

¶0 Injunction--Parties--License by Corporation Commission to Group of Partners to Operate Motor Trucks to Carry Freight on Designated Highway Routes Under Agreement as to Division of Territory--One of Group Held Entitled to Maintain Injunction Against Person Illegally Operating Truck in Territory Assigned to Former.
This record discloses that five persons entered into and filed with the Corporation Commission a written agreement whereby each of them was designated certain highways over which he should be permitted to carry freight. It was provided that plaintiff was to handle all freight from Ft. Cobb and Washita and intermediate points, and the other persons were given different territories. It also provided that each person should furnish his own motor trucks to operate his particular territory; and that each should accept as his full share of profits all and only the income derived from the vehicles operated by himself and in his territory, and under his supervision; and each person agreed to be responsible for any losses, bad debts, or other charges incurred by himself. Held, under this contract, the plaintiff could maintain an action for injunction, without joining the other parties to the contract, against a person alleged to be illegally hauling freight over the highways assigned to plaintiff by the agreement.

Appeal from District Court, Caddo County; T. P. Clay, Assigned Judge.

Injunction by T. B. Wells against J. H. Hensley. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Morris & Wilhite, for plaintiff in error.
Melton & Melton, for defendant in error.

HEFNER, J.

¶1 This is an action brought in the district court of Caddo county by T. B. Wells against J. H. Hensley to enjoin him from engaging in the business of carrying freight by motor truck over certain designated state highways.

¶2 Plaintiff alleges that he is the holder of a certificate of necessity issued to him by the Corporation Commission, authorizing and licensing him to engage in carrying freight by means of motor trucks to and from Fort Cobb to Oklahoma City, to and from Washita and from Fort Cobb to Lawton, thence to Anadarko and back to Fort Cobb; that defendant, without having obtained a certificate of necessity from the Corporation Commission and without complying with chapter 113, S. L. 1923, is engaging in the business of carrying freight by motor truck along and over the same route operated by plaintiff, to his irreparable damage and injury.

¶3 It developed at the trial that the certificate of necessity issued was not issued to plaintiff as an individual, but was issued to Leonard, Osman, Newby, Wells, and Methvin, a partnership doing business under the name of "Big Four Truck Lines." The trial court held that, since the certificate was issued in the name of the partnership, it was necessary that the partners join in the action for injunction; that plaintiff, individually, could not maintain the action; and rendered judgment in favor of defendant.

¶4 The record discloses that the partners entered into a written agreement and filed the same with the Corporation Commission, whereby each of them was designated certain highways over which he should operate, and that plaintiff was designated the territory here involved. The agreement provides that plaintiff should handle all freight from Fort Cobb and Washita, and intermediate points, and the other parties were given different territories. The agreement provides that each shall furnish his own motor trucks to operate his particular territory. As to the sharing of profits, it is provided:

"Each of the partners in the business shall accept as his full share of profits, all and only the income derived from the motor vehicles operated by him and under his supervision and each agrees to be responsible for any losses, bad debts, or other charges incurred by him or his drivers or employees."

¶5 Under this contract we think plaintiff can maintain the action. See the case of Beard v. Dennis (Ind.) 63 Am. Dec. 280, wherein the following rule was announced:

"Injunction against prosecution of trade may be granted at suit of one only of several partners with whom the contract was made, where an injunction simply, and not compensation or damages, is asked."

¶6 In the discussion of the case, the court said:

"They also object that Dennis cannot maintain this proceeding in his own name, but must, if at all, prosecute in the name of Dennis, Mumford & Hooker.

"As the complaint is simply to obtain an injunction, we think Dennis can maintain it in his name alone. The injunction is to operate for his benefit--he seems to be alone interested in its existence. But were he not, it is, when granted on his application, just as serviceable to Mumford and Hooker as though obtained on the joint application of all three of the parties, and no more detrimental to the appellants. Had the complaint sought to obtain compensation or damages, as the legal interest in the contract made the foundation of the proceedings is in Dennis, Mumford, and Hooker, it would probably have been necessary, even in this equitable proceeding, to have made them all parties, that it might bar any other suit by them for that purpose."

¶7 Since, under the evidence, plaintiff is alone interested in maintaining the suit and is the only person whose rights are injured by defendant, he was authorized to maintain the action in his own name. We express no opinion on the merits of the case.