Banks v. Collins
| Decision Date | 15 April 1953 |
| Docket Number | No. A-4052,A-4052 |
| Citation | 152 Tex. 265,257 S.W.2d 97 |
| Parties | BANKS v. COLLINS. |
| Court | Texas Supreme Court |
Harkness & Friedman, Bunyan L. Hutchinson and Jim Lindsey, Texarkana, for appellants.
Atchley & Vance, Texarkana, for appellee.
The certificate from the Court of Civil Appeals for the Sixth Supreme Judicial District states the nature of the cause and the questions to be answered.
'Plaintiffs sought to maintain venue in Bowie County, Texas, by virtue of Section 9 of Article 1995, R.C.S. of Texas.'
'* * * In our final disposition of the appeal on motion for rehearing, we followed the rule restated in Farley v. Nix (Tex.Civ.App.), 199 S.W.2d 670, namely, 'At most, it (evidence) was only necessary to show a probable recovery.' 'Whether or not plaintiff had made out a prima facie case was a question of law, to be determined upon the assumption that plaintiff's evidence was true, and the inferences most favorable to plaintiff, which his evidence would reasonably bear, must be indulged.' This same rule is recognized in Traylor v. Brentzel (Tex.Civ.App.) 218 S.W.2d 261; Straus-Bodenheimer Co. v. Marshall (Tex.Civ.App.) 91 S.W.2d 865; Jarvis-Tull & Co. v. Williams (Tex.Civ.App.) 114 S.W.2d 1218; Martin v. Cable (Tex.Civ.App.), 140 S.W.2d 894.
'Appellee contends that the application of above rule is in conflict with the holding in Cisneros v. Thompson (Tex.Civ.App.) 189 S.W.2d 67; McClesky v. Smades et al. (Tex.Civ.App.) 245 S.W.2d 269; and Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, which hold in effect as stated in Cisneros v. Thompson, supra, 'If the evidence would not justify the giving of a peremptory instruction that Thompson was negligent upon a trial of the merits, then such evidence upon a plea of privilege hearing would not authorize the court to set aside the trial court's implied finding that Thompson was not negligent, and find that he was negligent as a matter of law.'
'On a trial upon a plea of privilege, in determining the sufficiency of the evidence to support the trial court's judgment, should all adverse evidence be discarded and credit given to all evidence that is favorable to the successful party, and every reasonable conclusion that is favorable to him be indulged?
'Upon a trial of the merits, if the evidence would not justify the giving of a peremptory instruction that the defendant was negligent, but would be sufficient to support a jury finding of negligence, then would such evidence upon a plea of privilege hearing authorize the court of Civil Appeals to set aside the trial court's implied finding that the defendant was not negligent?
'The plaintiff, having made at least a prima facie showing that the defendant committed the trespass against the deceased in Bowie County, should this court have disregarded the evidence favorable to the defendant and reversed the judgment of the trial court?'
The venue of this cause was challenged by the appellee, who had been sued in a county other than his residence. The filing of the plea of privilege placed the burden on the appellant to plead and prove that the case is within one of the exceptions; in this instance, exception 9 to the general statute, Article 1995, Vernon's Ann. Civil Statutes.
Appellant filed her controverting affidavit, and the issue thus joined was submitted to the court without the intervention of a jury. The trial court heard the evidence and at the conclusion of the testimony sustained the plea of privilege filed by appellee, and ordered the cause transferred to Morris County, Texas, the county of his residence.
The trial court, having sustained the plea of privilege, the question arises as to whether the evidence was sufficient to sustain its implied finding of fact that a trespass was not committed by appellee in the county of suit.
The questions submitted indicate that the Court of Civil Appeals must have concluded that the evidence was conflicting and was sufficient to support the trial court's implied finding of fact in favor of appellee. The Court of Civil Appeals did not reverse and render judgment in this cause on the ground that there was no evidence supporting the implied finding in favor of appellee. Appellants based their appeal on points of error presenting the theory that there was no evidence in the record supporting the implied finding that appellee did not commit a trespass in Bowie County, Texas. It is clear that the court based its decision upon the theory that, even though there was sufficient evidence to sustain the trial court's judgment and implied finding of fact, this evidence should be disregarded, inasmuch as appellants made out a prima facie case.
This theory we cannot sustain. The appellants contend that appellee offered no evidence on the trial of the plea of privilege; whereas, it is the contention of appellee that the evidence is conflicting and supports the implied finding of fact by the trial court in his favor. The record presents the question of no evidence rather than the question of the insufficiency of the evidence.
In any event the rules announced in Compton v. Elliott, Tex.Com.App., 126 Tex. 232, 88 S.W.2d 91, 95, are controlling and should be followed by the Court of Civil Appeals. The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case. If the record on appeal raises the question of the insufficiency of the evidence to support the judgment of the trial court, and the appellate court is of the opinion that the evidence is insufficient, the Court of Civil Appeals has the right to remand...
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...in the light most favorable to appellee and to indulge every reasonable inference in support of the judgment. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). The facts alleged and proved in this case bring it clearly within the doctrine of res ipsa loquitur. The most frequently cited ......
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...Tex.Civ.App., 197 S.W.2d 118 and other authorities there cited; Kelly v. Applewhite, Tex.Civ.App., 231 S.W.2d 974; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. We find no proof, or at any rate none of probative force, showing or tending to show that appellee gave to appellant the property......
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