Austin Bros. v. Sill

• Decision Date: 16 May 1935
• Docket Number: No. 3243.,3243.
• Citation: 83 S.W.2d 716
• Parties: AUSTIN BROS. v. SILL
• Court: Texas Court of Appeals

83 S.W.2d 716

AUSTIN BROS. v. SILL

No. 3243.

Court of Civil Appeals of Texas. El Paso.

May 16, 1935.

Rehearing Denied June 6, 1935.

Appeal from District Court, Gregg County; Reuben A. Hall, Judge.

Action by E. O. Sill against Austin Brothers. From an order overruling a plea of privilege, defendant appeals.

Affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

John T. Buckley, of Longview, for appellee.

PELPHREY, Chief Justice.

Appellee brought this suit against appellant in the district court of Gregg county, Tex., seeking to recover for personal injuries alleged to have been received in a collision between his car and a truck belonging to appellant on the highway between the towns of Longview and Gladewater, Tex.

Appellant duly filed a plea of privilege to be sued in Dallas County, Texas. Appellee filed his affidavit controverting said plea, and upon hearing the trial court overruled the plea of privilege and from such action this appeal has been prosecuted.

Opinion.

Appellant presents three assignments of error in his brief with an equal number of propositions.

The first proposition questions the sufficiency of the evidence to show that the truck involved in the collision belonged to appellant; that the driver thereof was an employee of appellant; or that the driver was engaged in appellant's business.

The second and third assignments and accompanying propositions relate to the admissibility of evidence by appellee as to statements made to him by an alleged foreman of appellant.

Under the view we take of the question, a discussion of the latter propositions would be unnecessary.

To maintain venue in a suit where a plea of privilege has been filed by the defendant, all that is required of the plaintiff is to make out a prima facie case, and if the evidence here is sufficient to support a finding in favor of plaintiff in the absence of any evidence by defendant, then the court properly overruled the plea of privilege.

In Globe Laundry v. McLean, 19 S.W. (2d) 94, the Beaumont Court of Civil Appeals held that the fact that defendant's name was printed on its truck, uncontradicted and unexplained by it, was sufficient to raise the inference that it owned the truck and that it was being operated by one of its servants in the ordinary discharge of the duties of his employment. The decision was cited with approval by the Fort Worth Court in Mrs. Baird's Bakery v. Davis (Tex. Civ. App.) 54 S.W. (2d) 1031, 1032. In that case Chief Justice Conner said: "The jury are authorized to draw all lawful conclusions from facts proven in the effort to arrive at a verdict, and, when it is considered that designation of the names shown upon commercial trucks are familiar and generally indicate ownership, and when it is further considered that the truck at the time was being driven during business hours and in trade territory, and also that the defendant, in whose breast rests the actual knowledge of the truck's ownership and its mission, refuses to testify, deny, or disprove the legitimate inferences to be drawn from the name and signs shown, we are not prepared to say that prima facie evidence at least was not presented. * * *"

This statement was in response to the claim by appellant that there was no proof that the truck belonged to defendant or that the driver was the agent or employee of defendant, or at the time was engaged in the discharge of his duties as such agent or employee.

In Edgeworth v. Wood, 58 N. J. Law, 463, 33 A. 940, 942, one of the cases cited by the Beaumont court in Globe Laundry v. McLean, supra, the court said: "All the witnesses who saw the accident and noticed the wagon which ran over plaintiff unite in declaring that it was painted as were the wagons of the company, and that it was...