Claer v. Oliver

• Decision Date: 10 July 1933
• Docket Number: No. 2408.,2408.
• Citation: 62 S.W.2d 354
• Parties: CLAER v. OLIVER et al.
• Court: Texas Court of Appeals

62 S.W.2d 354

CLAER v. OLIVER et al.

No. 2408.

Court of Civil Appeals of Texas. Beaumont.

July 10, 1933.

Rehearing Denied July 19, 1933.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Suit by J. T. Oliver and others against R. G. Claer. From an order overruling his plea of privilege, defendant appeals.

Affirmed.

Sanders & McLeroy, of Center, and Thompson, Knight, Baker & Harris, of Dallas, for appellant.

Lane & Lane, of Center, for appellees.

COMBS, Justice.

This is an appeal from an order of the district court of Shelby county, Tex., overruling a plea of privilege and is a companion case to the case of Murray v. Oliver (Tex. Civ. App.) 61 S.W.(2d) 534, this day decided, appellant being a joint defendant in the suit with C. L. Murray and the Beacon Oil & Refining Company. The controverting affidavits of the pleas of privilege of C. L. Murray and of the appellant raised the same issues of fact, except as hereinafter mentioned, and upon the hearing both pleas were submitted on the same evidence.

Plaintiffs, in their petition and in their controverting affidavits, allege that C. L. Murray was the driver and R. G. Claer the owner of the International truck involved in the suit and were at the time of the injuries complained of engaged in the transportation of oil in Shelby county, Tex., for the Beacon Oil & Refining Company; that while C. L. Murray was driving said truck down an incline near Walnut Grove Church in Shelby county he drove the same off the highway and collided with a truck belonging to the plaintiff Oliver, which was parked some ten steps from the road, damaging the Oliver truck and seriously and painfully injuring plaintiff Effie Oliver, who was sitting in the Oliver truck at the time. Three positive acts of negligence were alleged: (a) That the defendant, Murray, negligently operated said truck at an excessive and dangerous rate of speed; (b) that he negligently turned said truck from the highway and steered it into the truck of the plaintiff Oliver; and (c) that he negligently operated said truck upon the public highway without the same being equipped with adequate brakes.

In the Murray Case we have discussed the evidence bearing upon these issues, and held that the evidence raised them and that the court properly overruled the plea of privilege of C. L. Murray, the driver of the truck, on the ground that the suit was founded upon a trespass committed in Shelby county, within the meaning of subdivision 9, article 1995, R. S. 1925. It is, therefore, unnecessary for us to discuss those matters here.

But the appellant, in addition to urging the same grounds urged by C. L. Murray, contends that his plea of privilege was improperly overruled on the grounds (a) that there was no evidence that he was the owner of the truck in question; and (b) there was no evidence that the defendant, Murray, was his agent, or in the discharge of any duty of his employment at the time of the accident. These contentions are overruled.

On the hearing it was testified by the plaintiff Oliver that the truck which C. L. Murray was driving had printed on the door the words and figures, "R. G. Claer, Wichita Falls, Phone 705—7045," and "Truck No. 7." And on the other side were the words and figures, "R. G. Claer, Beacon Oil & Refining Company, Henderson, Texas. Phone No. 16559." At the time of the accident the truck was loaded with oil. Oliver further testified that he saw R. G. Claer one time; that Claer and C. L. Murray, driver of the truck, came to his home after the accident; that Claer introduced himself and asked permission to see his (Oliver's) truck; and that he showed it to him. Appellant offered no testimony whatever.

The testimony above summarized, uncontradicted and unexplained by the appellant, was sufficient to raise the issue that appellant owned the truck and that it was being operated by his agent in the ordinary discharge of the duties of his employment. Globe Laundry Co. v. McLean (Tex. Civ. App.) 19 S.W.(2d) 94; Mrs. Baird's Bakery v. Davis (Tex. Civ. App.) 54 S.W.(2d) 1031; Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432.

Appellant makes the further contention that his plea of privilege should have been sustained for the reason that it was not shown that he acted in person in the commission of the alleged trespass. This contention is overruled. To maintain venue over a defendant in the county where the trespass was committed, it is only necessary to show that his agent committed it while acting in the apparent scope of his employment. This has been specifically held by the Texarkana Court of Civil Appeals in two cases. Campbell v. Wylie, 212 S. W. 980; Carver Bros. v. Merrett, 184 S. W. 741, 745. In the latter case defendants, Carver Bros., who were residents of Collin county, were sued in Titus county, for damages resulting from the conversion of certain cotton warehouse receipts by their agent. After holding that the conversion of the cotton receipts constituted a "trespass," within the meaning of the venue statute, it was said by Judge Levy, speaking for the court: "It is quite true that the appellants themselves could not be held criminally responsible for the trespass here. But appellants, acting through an agent, were, in legal principle, bound to see that no one suffered legal injury through the agent's wrongful act done in their service within the scope of the agency. The agent committed the act and wrong in Titus county. The injury done to appellee and the bank by the act or wrong was in Titus county. And upon the ground of being made legally chargeable with the conduct of their agent,...