Bettis v. Rayburn, 2051.

• Decision Date: 18 October 1940
• Docket Number: No. 2051.,2051.
• Citation: 143 S.W.2d 1011
• Parties: BETTIS et al. v. RAYBURN et ux.
• Court: Texas Court of Appeals

143 S.W.2d 1011

BETTIS et al. v. RAYBURN et ux.

No. 2051.

Court of Civil Appeals of Texas. Eastland.

October 18, 1940.

Appeal from Forty-second Judicial District Court, Taylor County; M. S. Long, Judge.

Action by Henry F. Rayburn and wife against J. M. Bettis and another to recover damages for the death of plaintiff's minor son, in which defendants filed pleas of privilege to be sued in the county of their residence. From a judgment overruling the pleas, defendants appeal.

Reversed and remanded.

T. J. McMahon, of Abilene, and F. M. Fitzpatrick, of Waco, for appellants.

Stinson, Hair, Brooks & Duke, of Abilene, for appellees.

GRISSOM, Justice.

Henry F. Rayburn and wife filed this suit in Taylor County against J. M. Bettis and Jimmie Oldham, residents of McLennan County, Texas, to recover damages for the death of their minor son. The defendants filed pleas of privilege to be sued in the county of their residence. The pleas of privilege were overruled and defendants have appealed.

On the night of March 19, 1939, a truck owned by Bettis and driven by his employee, Oldham (while Oldham was acting within the scope of his employment), struck J. R. Rayburn, the 19 year old son of the plaintiffs, inflicting injuries which rendered him unconscious and caused his death about two hours later.

To maintain venue of the suit in Taylor County plaintiffs relied upon Subd. 9, Art. 1995, R.S.1925, which provides: "A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile." The allegations of the controverting affidavits were to the effect that plaintiffs' case came within Sec. 9, Art. 1995, that is, that a crime or trespass was committed by defendants in Taylor County, as follows: (a) Because defendants' truck was not equipped with adequate brakes, kept in good working order; that said brakes were insufficient to stop said truck within a reasonable and proper distance; (b) "Because said defendants in the operation of defendants' said truck at said time and place failed to observe the road and especially J. R. Rayburn and keep a proper lookout for persons and especially the said J. R. Rayburn at said time and place and by reason thereof the said defendants struck and killed the said J. R. Rayburn." (c) Because defendants, after they "discovered the perilous condition of J. R. Rayburn failed to use all means at hand to prevent the striking and killing of the said J. R. Rayburn"; (d) because the driver of the truck had operated it for a period of more than 14 consecutive hours immediately prior to the collision; (e) because the defendants were operating the truck on the highway in excess of 25 miles per hour and were thereby guilty of negligence per se; (f) because defendants were operating the truck at a greater speed than 45 miles per hour, and were thereby guilty of negligence per se. (g) Because defendants were operating the truck in excess of the speed allowed by the laws of Texas "as shown by the facts on the ground in that the truck skidded on the pavement about 14 yards and traveled a distance of 107 yards after striking the person and body of J. R. Rayburn and was thereby guilty of negligence." (h) Because defendants were negligent in the operation of said truck "at said time and place in that the facts show that said truck struck the body and person of J. R. Rayburn and threw him about 44 yards and then ran over the said J. R. Rayburn with the wheels of said truck and thereby killed the said Rayburn." (i) That defendants were negligent in that "after they discovered the perilous condition of said J. R. Rayburn they failed to turn their said truck to the left in order to avoid the striking and killing of said J. R. Rayburn." (j) Because defendants failed to have adequate lights as required by law, and were thereby guilty of negligence per se. (k) Because defendants were negligent in that the driver of the truck was asleep. (l) That the defendants were negligent in that they failed to "yield to said J. R. Rayburn and undertaking to pass the said J. R. Rayburn [on] * * * that part and portion of the road or highway on which the said J. R. Rayburn was traveling at said time and was thereby guilty of negligence per se." (m) That defendants were guilty of negligence in that the driver failed to stop and render aid.

After a most careful study of the pleadings and evidence we are convinced that a finding that defendants were guilty of a crime or trespass in Taylor County, within the meaning of Subd. 9, Art. 1995, lacks support in either the pleadings or evidence, or both, except as hereinafter mentioned. As illustrative only of the reasons for such conclusion we will mention some of the acts of negligence alleged and point out wherein it appears to us that said particular ground of negligence is insufficient by reason of pleading or proof, or both, to support a finding that defendants committed a crime or trespass in Taylor County at the time of the collision. The allegations in paragraph (a) of plaintiffs' controverting affidavit that defendants' truck was not equipped with adequate brakes kept in good working order, if sufficient as an allegation of a trespass (and we think it is not), is wholly without support in the evidence. The same is true of the allegation in paragraph (d) that the driver of the truck had operated it consecutively for a period of more than 14 hours immediately prior to the collision, the allegation in paragraph (j) that the defendants failed to have adequate lights, and the allegation in paragraph (k) that the driver of the truck was asleep. The allegation in paragraph (c) that after defendants discovered the perilous condition of Rayburn, they failed to use all means at hand to prevent striking and killing him, if sufficient as an allegation of trespass, does not authorize a finding of trespass, because there is no evidence that the driver of the truck discovered the perilous position of Rayburn. It is essential that plaintiffs establish that Oldham actually discovered the peril deceased was in; it is not sufficient to show that he should have done so. Thurmond v. Pepper, Tex.Civ.App., 119 S.W.2d 900, 904; Texas & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Morgan & Bros. v. M., K. & T. Ry. Co., 108 Tex. 331, 334, 193 S. W. 134; San Antonio & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S.W. 103. (The evidence is to the effect that the driver of the truck did not see Rayburn or his companion. The real controversy in the testimony in this particular was whether or not Oldham's failure to see Rayburn and his companion as they rode along the highway on their bicycles was due to the fact that Oldham was blinded by the glare of the headlights of...