Faught v. Cloud, 2155.

• Court: Texas Court of Appeals
• Writing for the Court: Alexander
• Citation: Faught v. Cloud, 131 S.W.2d 137 (Tex. App. 1939)
• Decision Date: 13 July 1939
• Docket Number: No. 2155.,2155.
• Parties: FAUGHT v. CLOUD.

131 S.W.2d 137

FAUGHT v. CLOUD.

No. 2155.

Court of Civil Appeals of Texas. Waco.

July 13, 1939.

Appeal from District Court, Brazos County; W. C. Davis, Judge.

Action by Jess J. Cloud against C. M. Faught and others for injuries sustained in an explosion. From a judgment overruling a plea of privilege, named defendant appeals.

Reversed and remanded.

Joseph W. Hale and Travis McCown, both of Waco, for appellant.

W. S. Barron, of Bryan, for appellee.

ALEXANDER, Justice.

This is an appeal from a ruling of the trial court overruling the defendant Faught's plea of privilege to be sued in McLennan county, the county of his residence. The plaintiff Jess J. Cloud sued Anderson-Prichard Oil Corporation, alleged to be a foreign corporation with an agent in Texas, and Lynn Adams and C. M. Faught of McLennan county, Texas, in Brazos county for damages for personal injuries alleged to have been sustained by plaintiff. The defendant Faught filed a plea of privilege in due form, asserting his right to be sued in McLennan county. The plaintiff filed a controverting affidavit, which, omitting the introductory paragraph and prayer for relief, read as follows:

"Plaintiff shows to the court that his cause of action set out in his petition, or a part thereof, arose in Brazos county, Texas, and that said suit is against a private corporation and two individuals, one of whom is the defendant C. M. Faught; and under subdivision 23, Art. 1995, Revised Civil Statutes of Texas, the suit is properly brought in Brazos county, Texas.

"The plaintiff further shows to the court that the defective solvent, the explosion of which caused the injuries set out in plaintiff's petition, was delivered by the defendant C. M. Faught to plaintiff's place of business in Bryan, Brazos county, Texas, and was paid for by plaintiff at said place of business, and all the injuries resulting from said explosion occurred in Brazos county, Texas."

The trial court, after hearing the evidence, overruled the defendant Faught's plea of privilege. Faught appealed.

We are of the opinion that plaintiff's controverting affidavit was insufficient to controvert the defendant's right to be sued in the county of his residence. It will be noted that the controverting affidavit does not have attached to it a copy of plaintiff's petition, nor does it incorporate the allegations thereof by reference or otherwise. The controverting affidavit does not undertake to set out the facts constituting plaintiff's cause of action. It is a well established rule that a controverting affidavit to a plea of privilege must contain sufficient allegations within itself, or by appropriate reference, to set out a cause of action triable in the county where the suit is filed, Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, par. 3, and where the allegations contained in the...