Buzzini Drilling Co. v. Fuselier

• Citation: 562 S.W.2d 878
• Decision Date: 02 February 1978
• Docket Number: No. 17075,17075
• Parties: BUZZINI DRILLING COMPANY, Appellant, v. Morris FUSELIER, Jr., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 878

562 S.W.2d 878

BUZZINI DRILLING COMPANY, Appellant, v. Morris FUSELIER, Jr., Appellee.

No. 17075.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Feb. 2, 1978.

Fulbright & Jaworski, Frank G. Jones, Houston, for appellant.

Jamail & Gano, Richard W. Mithoff, Jr., Houston, for appellee.

EVANS, Justice.

This is an appeal from an order granting the motion of appellee to strike the plea of privilege filed by appellant, Buzzini Drilling Company.

The appellee instituted this personal injury action against Dow Chemical Company and Buzzini Drilling Company. Buzzini filed a plea of privilege and, subject thereto, an answer to the appellee's petition. Appellee filed a controverting affidavit, but before action was taken on Buzzini's plea of privilege, Texas Employers' Insurance Association filed a petition in intervention. Buzzini then answered the petition in intervention, but it did not recite in the pleading that the answer was filed subject to its pending plea of privilege. The appellee thereafter filed a motion to strike Buzzini's plea of privilege, which the trial court granted, and Buzzini appeals.

The basic question before this court is whether Buzzini waived its plea of privilege by failure to allege in its answer to the petition in intervention that its response was filed subject to its pending plea of privilege.

A plea of privilege will be considered waived when the defendant takes some action prior to the venue hearing which is inconsistent with its position on the venue issue. An inconsistent action which results in a waiver is one which invokes the general jurisdiction of the court without reservation of the rights asserted in the plea of privilege. Hickman v. Swain, 106 Tex. 431, 167 S.W. 209, 210 (1914); H. Molsen and Co. v. Williamson, 510 S.W.2d 366 (Tex.Civ.App. Dallas 1974, no writ).

It is the appellee's position that when Buzzini filed his answer in response to the petition in intervention, it submitted itself to the jurisdiction of the court for all purposes. In support of this position, appellee cites Hurst v. Stewart, 526 S.W.2d 668 (Tex.Civ.App. San Antonio 1975, writ dism'd); City of Orange v. State ex rel. City of Port Arthur, 450 S.W.2d 722 (Tex.Civ.App. Beaumont 1970, no writ); Sun Oil Co. v. High Plains Underground Water Conservation Dist., 426 S.W.2d 347 (Tex.Civ.App. Amarillo 1968, no writ).

All of the cases relied upon by the appellee stand for the proposition that a plaintiff who institutes an action in a particular county submits himself to the jurisdiction of the court with respect to all matters arising out of or incidental to the subject matter of the suit. Thus, a plaintiff who files suit in a particular county waives his right to be sued in the county of his residence with respect to an intervention arising out of the action he has initiated. Sun Oil Co. v. High Plains Underground Water Conservation Dist., supra.

The situation in the present case is different from the...