Sunset Brick & Tile, Inc. v. Bushong

• Decision Date: 28 September 1967
• Docket Number: No. 335.,335.
• Parties: SUNSET BRICK & TILE, INC., et al., Appellants, v. Myrtle C. BUSHONG, a widow, et al., Appellees.
• Court: Texas Court of Appeals

419 S.W.2d 386

SUNSET BRICK & TILE, INC., et al., Appellants, v. Myrtle C. BUSHONG, a widow, et al., Appellees.

No. 335.

Court of Civil Appeals of Texas, Corpus Christi.

September 28, 1967.

Lipscomb Norvell, Jr., of Benckenstein & Norvell, Beaumont, for appellants.

Mike Willatt, of Carroll, Matthews & Willatt, Houston, for appellees.

OPINION

NYE, Justice.

This is an appeal from an order of the trial court which overruled the plea of privilege of the appellants Sunset Brick & Tile, Inc. and Daniel v. Leazer. The suit was instituted by Myrtle C. Bushong, a widow, individually and as next friend of her minor daughter Linda Bushong to recover damages for the death of appellees' husband and father alleged to have resulted from an automobile-truck collision near Palacios in Matagorda County, Texas. The appellees, by their controverting affidavits, sought to maintain venue in Matagorda County, Texas by virtue of article 1995, subsection 9a against both appellants and section 23 of article 1995, against corporate appellant Sunset Brick & Tile, Inc. The pleas of privilege were heard by the trial court sitting without a jury. No findings of fact or conclusions of law were requested or filed.

The test on appeal from an order overruling a plea of privilege as to the evidence is the same as in any other civil case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (Tex.Comm'n App.1935). It has been universally held by our appellate courts that in order to maintain venue under subsection 9a of article 1995, the plaintiff must allege and prove facts that an act or omission of negligence of the defendant or his servant, agent or representative, acting within the scope of the employment proximately caused plaintiffs' injuries and that such negligence occurred in the county where the suit was filed. It is also a fundamental rule that when a case is tried without a jury and where no findings of fact or conclusions of law are requested of or filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory and every issue sufficiently raised by the evidence must be resolved in support of the judgment. Henderson v. Willmon, 407 S.W.2d 24 (Tex.Civ.App.—Texarkana, 1966, wr. dism'd); 3B Tex.Jur. § 873, p. 278.

Appellants in four points contend that the court erred in overruling their plea of privilege to be sued in Gonzales County, Texas, the county of their residence and/or residence of their registered agent because there was no evidence that the defendants were guilty of negligence which proximately caused appellees' damage.

Our duty in this connection is to examine the record in the light of appellants' points of error and determine if the evidence is legally sufficient to support the trial court's judgment. If discarding all adverse evidence and giving credit to all evidence that is favorable to the plaintiffs and indulging every legitimate conclusion favorable to the plaintiffs which might have been drawn from the facts proved, a trier of the facts might have found in their favor, then there is sufficient evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953). See this court's opinion in Frick v. Duge, 413 S.W.2d 750 (Tex.Civ.App.— Corpus Christi 1967, n. w. h.) and Sunset Brick & Tile, Inc. v. Miles, 417 S.W.2d 93 (Tex.Civ.App.—Corpus Christi 1967).

The record before us which includes the statement of facts shows that the collision in question occurred on the morning of March 17, 1965 at approximately 5:30 in the morning. Appellee Myrtle Bushong's husband was driving his automobile on his way to work in the oil fields. Four other men were riding as passengers in his car. It was dark and there was a misting...