American Fidelity & Casualty Co. v. Windham, 2807.
| Decision Date | 06 April 1933 |
| Docket Number | No. 2807.,2807. |
| Citation | 59 S.W.2d 259 |
| Parties | AMERICAN FIDELITY & CASUALTY CO. et al. v. WINDHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Upton County; C. R. Sutton, Judge.
Action by O. D. Windham, as next friend of Noreen Windham, a minor, against the American Fidelity & Casualty Company and another. From an order overruling defendants' pleas of privilege, they appeal.
Affirmed.
John H. Awtry, of Dallas, and B. A. Carter and Collins, Jackson & Snodgrass, all of San Angelo, for appellants.
B. F. Howell, of Rankin, and Kerr & Gayer, of San Angelo, for appellee.
Appellants prosecute this appeal from an order of the district court of Upton county overruling their separate pleas of privilege to be sued in the county of their residence.
Appellee, O. D. Windham, as next friend of his minor daughter, Noreen Windham, sued the American Fidelity & Casualty Company, the Oil Field Bus Lines, A. L. Mahaffay, and P. R. Veal in the district court of Upton county for damages for personal injuries to said minor.
The appellee dismissed his suit as to the Oil Field Bus Lines and P. R. Veal, and we will briefly state the matters at issue as between appellants and appellee.
Appellee's petition represents that he resides in Upton county; that the American Fidelity & Casualty Company is a foreign insurance corporation, duly incorporated, etc., and doing business in this state, "having as its agent and upon whom process may be served herein, B. A. Carter, who resides in Tom Green County, Texas"; that A. L. Mahaffay resides in Tom Green county, Tex., operating and doing business under the name of Oil Field Bus Lines; that on July 12, 1931, Oil Field Bus Lines and Mahaffay and each of them, motor carriers running and operating automobile busses on the public highways in Texas for hire, having obtained certificate of public convenience and necessity from the railroad commission of Texas, did, prior to said time, file with the railroad commission a bond and insurance policy, viz., American Fidelity & Casualty Company, as obligor, providing that said obligor would pay all judgments which might be recovered against the motor carrier based on claims for loss or damage from personal injuries, and loss of and injury to property occurring during the term of such bond and policy, and arising out of the actual operation of such busses; that on the date aforesaid such policy and bond were in force, and said motor carriers were then and there operating such motorbus under said certificate of necessity and convenience; whereby said insurance defendant became obligated to pay plaintiff the stated amount of her damages.
Appellee then, at length, in effect, states that on July 12, 1931, on a public street in the city of Rankin, in Upton county, a collision occurred between a motorbus then being operated under said certificate of necessity and convenience and permit, and a Ford coupé automobile driven by Mrs. Borger, in which collision the injury complained of to the minor child occurred. The petition states in detail the manner of driving and handling the motorbus at the time of the collision with the Ford coupé, and the circumstances attending, to which appellee assigns negligence.
Appellants Mahaffay and American Fidelity & Casualty Company each filed a separate verified plea of privilege. Each plea is in the usual form of such pleas and to which, as to form, no objection is made. Mahaffay states that at no time was he a resident of Upton county, but that at all such times he resided and still resides in Tom Green county, and that no exception to exclusive venue in the county of his residence provided by law exists in this cause as to him. Mahaffay in his said plea denied that the Oil Field Bus Lines was a corporation or had its office or principal place of business at McCamey in Upton county, and at San Angelo in Tom Green county, and that such allegations were fraudulently made to sustain venue in Upton county; that he (Mahaffay) is not and never was local agent for any such corporation. Mahaffay's said plea states that appellee's allegations purporting to state a cause of action against the American Fidelity & Casualty Company are fraudulently made for the purpose of conferring and sustaining venue in this cause in Upton county; that appellee well knew that no cause of action existed against said company; that said petition does not allege a cause of action against said company; and that said company is not a necessary or proper party to said suit under the allegations of said petition, and that said company is fraudulently joined herein to sustain venue in Upton county. Appellant Mahaffay prays that his plea be sustained and this cause be transferred to Tom Green county.
The American Fidelity & Casualty Company's verified plea is formal and sufficient in form as a plea; states that at no time was it a resident of Upton county; that at all times it was a foreign corporation under the laws of the state of Virginia "with its principal office and place of business in such state and with B. A. Carter of San Angelo, Texas, as its local agent in Tom Green County, Texas, said County being the nearest County in the State of Texas in which said defendant has a local agent to the said Upton County, Texas, the County in which this suit is filed, and that no exception to exclusive venue in the County of one's residence provided by law exists in said cause."
Appellee filed a controverting affidavit to the pleas of privilege. The affidavit is lengthy and we need not state its verbiage. Omitting all reference to the Oil Field Bus Lines and P. R. Veal (dismissed), the affidavit claims venue as to the American Fidelity & Casualty Company under subdivisions Nos. 3 and 4 of article 1995 of our statute. Also that the suit is based upon a trespass by reason of the collision of the automobile bus with the Ford coupé, committed by appellants against plaintiff in Upton county, venue is conferred upon appellants by subdivision 9 of article 1995, a special exception to the general rule of venue.
Also venue is claimed under the facts under subdivisions Nos. 23, 27, 28, and 29a of said statute, the last-named subdivision being an amendment to article 1995 by the 40th Legislature (1st called Sess.) c. 72, § 2 (Vernon's Ann. Civ. St. art. 1995, § 29a).
The court heard evidence on the pleas and overruled each of them, from which action appellants prosecute this appeal.
Opinion.Without quoting the evidence, the following uncontroverted facts are shown and which seem to be pertinent to the questions presented:
Appellee and the injured infant, Noreen Windham, for whom the suit is brought, reside in Upton county where the accident in which the injury to the infant and loss occurred.
The American...
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