Conner v. Chatman

• Decision Date: 07 October 1954
• Docket Number: No. 12749,12749
• Citation: 272 S.W.2d 136
• Parties: Reuben T. CONNER, Appellant, v. William M. CHATMAN, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 136

272 S.W.2d 136

Reuben T. CONNER, Appellant, v. William M. CHATMAN, Jr., et al., Appellees.

No. 12749.

Court of Civil Appeals of Texas, Galveston.

Oct. 7, 1954.

Rehearing Denied Oct. 28, 1954.

George Red and K. D. Keenan, Houston, for appellant.

Blakeley & Williams and Carey Williams, Houston, for appellees.

HAMBLEN, Chief Justice.

This appeal is from an order of the County Court at Law of Harris County, sustaining a plea of privilege filed by the appellee, William M. Chatmen, Jr., and transferring the cause of action against him to Galveston County, Texas. Appellant instituted the suit against appellee and against Ben Collette and Elton E. Wilhelm to recover damages alleged to have been sustained in an automobile collision which occurred on the 27th of December, 1953 on the Hempstead Highway, about 15 or 20 miles outside of Houston. Appellant alleged that at the time of the collision he was traveling toward the City of Houston when the automobile in front of him came to a stop. Appellant applied his brakes and came to a complete stop. 'Instantaneously' thereafter his automobile was struck from the rear, forcing him into the automobile in front of him. His automobile then received a series of blows from the rear. Appellant alleged that the automobile which struck his automobile was driven by appellee, and that appellee's automobile was thereupon struck in the rear by automobiles driven by the other two named defendants, knocking appellee's automobile repeatedly into appellant's automobile, and causing the damages sued for. Appellant alleged that the collision, and resulting damages proximately resulted from the negligence of each of the defendants in four particulars, namely, in failing to keep a proper lookout, in failing to keep the vehicles under proper control, in failing to make timely application of the brakes, or in the alternative in failing to apply the brakes at all, and in following too closely in violation of Section 61(a) of Article 6701d, Vernon's Ann.Civ.St.

The plea of privilege filed by appellee Chatman was controverted by appellant by timely affidavit alleging that the suit was based upon negligence of the appellee occurring in Harris County, which constitutes an exception to exclusive venue in the county of one's residence within the meaning of Section 9a, Article 1995, Vernon's Annotated Civil Statutes of Texas, and further that the suit is against three defendants, two of whom are residents of Harris County, which constitutes an additional exception within the meaning of Section 4, Article 1995.

Appellant presents two points of error, the first directed to the asserted error of the trial court in refusing to hold that appellant had established an exception to exclusive venue in the county of appellee's residence under the provisions of Section 9a, Article 1995, and the second, to the error of the trial court in refusing to hold that appellant had established an exception under the provisions of Section 4, Article 1995.

This Court is of the opinion that upon the record here presented, both points presented by appellant must be overruled.

Appellant's proof offered for the purpose of proving an exception to exclusive venue under Sec. 9a, Article 1995, was adduced from two witnesses. Appellant himself testified that he and his family were returning to Houston from a Christmas trip. That it was afternoon, the weather was bad, and the braking surface was bad; that traffic was very heavy and there were lots of quick stops. The automobile immediately preceding appellant's car came to a complete stop and appellant brought his car to a complete stop. Instantly thereafter his automobile received a series of blows from the rear, pushing it into the car in front of him. The witness, Marvin C. Horelica, testified that he was driving his automobile immediately to the rear of appellant, and about fifty feet from him. When appellant slowed down, Horelica likewise started to slow down. While doing so, he looked in his rear view mirror, and saw that the cars following him were not going to be able to stop. That thereupon appellee's automobile struck the rear of his (Horelica's) automobile, he then going into the ditch, and then appellee's automobile struck the rear of appellant's automobile, which had come to a complete stop. Horelica corroborated appellant concerning the condition of the highway and the visibility and traffic. He stated that he had been following appellant for some distance, and that appellee had been following him for some distance, at a speed of from 30 to 40 miles per hour. That the last time he saw appellee's automobile in his rear view mirror was immediately before the collision, after he had started slowing down, at which time appellee was about 20 feet behind him.

Standing alone, appellant's testimony proves only that an accident happened, which the Commission of Appeals, speaking through Judge Smedley, under an almost identical state of facts has held is not evidence of negligence in cases where, as here, specific acts of negligence are alleged by the plaintiff. Rankin v. Nash-Texas Co., Tex.Com.App.,...