Gann v. Murray

• Decision Date: 27 February 1952
• Docket Number: No. A-3315,A-3315
• Citation: 151 Tex. 130,246 S.W.2d 616
• Parties: GANN et al. v. MURRAY et al.
• Court: Texas Supreme Court

Page 616

246 S.W.2d 616

151 Tex. 130

GANN et al. v. MURRAY et al.

No. A-3315.

Supreme Court of Texas.

Feb. 27, 1952.

Rehearing Denied March 26, 1952.

Murray & Murray, Floresville, Charles J. Lieck, San Antonio, for relators.

Carl Wright Johnson and Nat L. Hardy, San Antonio, for respondents.

WILSON, Justice.

This is a mandamus proceeding to compel certification of questions of venue involving Sec. 9, Art. 1995, R.C.S., Vernon's Ann.Civ.St. art. 1995, § 9. Our jurisdiction is invoked upon an alleged conflict between the Court of Civil Appeals opinion in the case at bar, 240 S.W.2d 822, and Hurley v. Reynolds, Tex.Civ.App., 157 S.W.2d 1018.

The parties will be referred to as in the trial court.

Plaintiffs sued for damages resulting from personal injuries and death caused when their car ran into defendants' truck parked at night beside a highway. They alleged that defendants failed to have flares the required distance from the parked truck as required by Sec. 9-a ¹ of Art. 827a, Penal Code, Vernon's Ann.P.C. art. 827a, § 9-a. They alleged another offense which we need not discuss. Defendant filed pleas of privilege which were sustained by the trial court whose action has been affirmed on appeal.

We must determine whether or not there is a conflict and, in the event of a conflict, determine the law.

We hold that the two cases are in conflict because the opinion under attack in the case at bar holds that for plaintiff to retain venue in the county of suit under Sec. 9, where the suit is based upon a crime, it is necessary for him to prove that his injuries were proximately caused by the crime. The case of Hurley v. Reynolds, supra, holds to the contrary that it is not necessary for plaintiff to prove that his injuries were proximately caused by the crime.

This problem is raised here because although plaintiffs plead that their injuries were the result of defendants' failure to have flares out from the parked vehicle the statutory distance, the trial court found, on proof, that flares were out a distance of 80 feet (instead of 150 feet as required by Sec. 9-a, (Art. 827a) and under the circumstances (straight level road and moonlight night) could be seen by a vehicle approaching from the rear in plenty of time to avoid hitting the parked truck. The trial court then made a fact finding that the injuries were not proximately caused by the alleged offenses and sustained the pleas of privilege to change the venue to defendants' home county.

As one of the exceptions to the general statute on venue, Sec. 9, ² provides that where a suit is 'based upon a crime, offense, or trespass' it may be brought in the county where the crime is committed. In the case of Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95, this Court said: 'The venue facts which a plaintiff is required to plead and prove under exception 9 are that the crime, offense, or trespass was in fact committed and that it was committed in the county where the suit is pending.'

Some of the cases discussing the word trespass in this act bring proximate cause into a venue hearing by holding proximate cause to be an element of the definition of trespass. See Heard & Heard v. Kuhnert, Tex.Civ.App., 155 S.W.2d 817. We do not here pass upon the meaning of the word trespass.

The words crime and offense as used in this section can apply only to a set of facts denominated and defined as a crime or offense for which the defendant is liable to punishment. Austin v. Cameron, 83 Tex. 351, 18 S.W. 437. Therefore, the elements of a particular crime necessarily have to be determined from the definition of that crime in the Penal Code and related legislation as judicially construed. The approach to causation in civil negligence actions through the concept of proximate cause is not the same as the approach to causation in criminal cases, although both a civil and criminal action may rest upon the same facts. ³ In the case of POPE V. STATE, TEX.CR.APP., 245 S.W.2D 245, 247,⁴ our Court of Criminal Appeals said 'The trial court in his charge fully protected the rights of appellant with reference to the required causal connection between the alleged intoxication and the collision. Also, the particular facts with reference to the act of Harris in driving in front of appellant's automobile were expressly required to be negatived as the sole causal factor in bringing about the collision.

'We are constrained to agree that the charge, as given, accorded to appellant his full defensive rights and those that were due him under what is referred to as an 'unavoidable accident.'

'It must be remembered that the definition given to the terms, 'proximate cause,' 'contributory negligence,' and 'unavoidable accident,' as known to and applied to civil cases, does not apply to criminal cases.'

See Long v. State, Tex.Cr.App., 214 S.W.2d 303, on second appeal Tex.Cr.App., 229 S.W.2d 366.

Therefore it cannot be said that proximate cause is an element in the definition of a crime.

In determining venue under Sec. 9, supra, it is neither necessary nor desirable that plaintiff be required to prove his entire cause of action. By the use of the words based upon, Sec. 9 requires a causal connection between the injury suffered and the crime committed, ⁵ but this is determined on a venue hearing as a matter of law from the pleadings. If it can be determined as a matter of law from the face of the pleadings that the crime alleged was not the proximate cause of the injuries alleged it would follow that plaintiffs' suit is not 'based upon' the crime alleged. The causal connection between the crime and the injury is not a 'venue fact' requiring proof. Compton v. Elliott, supra. Section 9 offers a defendant no protection against unfounded factual allegations that the crime was the proximate cause of the injury. In Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304, this Court said: '* * * The statutory provisions as to the defendant's privilege and the plea of privilege were not intended to protect defendants from unfounded suits.'

We have considered the well-reasoned case of Thomas v. Meyer, Tex.Civ.App., 1943, 168 S.W.2d 681, but have concluded that on the point of proximate cause it is not correctly decided. The argument that the Legislature has not changed the act since this construction was announced has no weight where the case is in conflict with a decision by another Court of Civil Appeals during the time when it might have been considered by the Legislature.

In deciding this case the Court of Civil Appeals expressly stated that it assumed for the purposes of its opinion that an offense had been alleged and proved under a valid statute. Our jurisdiction in this type of proceeding is limited to answering the very question either certified or requested certified. We do not have before us either the record or the briefs filed in the Court of Civil Appeals. In any mandamus proceeding there may be questions which the Court of Civil Appeals did not reach under its view of the law, but which it will need to consider after this Court has answered the certified question. Therefore, we do not decide whether Sec. 137 of Art. 6701d, V.A.C.S. repeals Penal Code, Art. 827a, Sec. 9, and we expressly refrain from passing upon the question of whether an offense was alleged and proved in the case at bar, and if so, whether or not the pleadings establish that plaintiffs' suit is 'based upon' this offense.

The question plaintiffs wish certified is as follows: 'When on the trial of the pleas of privilege filed by the appellees, Raymond Earl Mabra and Ben E. Keith, appellants proved commission of two crimes in Wilson County, Texas, by the appellee, Raymond Earl Mabra, while acting in the course of his employment for said appellee, Ben E. Keith, both of which crimes were negligence as a matter of law, was it necessary for appellants to prove that at least one of such crimes was the proximate cause of their injuries in order to establish venue in Wilson County, Texas, under Exception 9 of Article 1995, Vernon's Annotated Civil Statutes of Texas?'

This question is answered in the negative. Plaintiffs were required to prove 'that the crime * * * was in fact committed and that it was committed in the county where the suit is pending.' Compton v. Elliott, supra. The pleadings will determine as a matter of law for purposes of venue whether or not their suit is based upon that crime.

Under Rule 475, T.R.C.P., the Honorable Court of Civil Appeals for the Fourth Supreme Judicial District of Texas is directed to conform its ruling and decision to this opinion. Costs are taxed against respondents.

SHARP, J., dissents.

SHARP, Justice (dissenting).

This is a personal injury suit, filed in Wilson County. The venue thereof was based upon Section 9 of Article 1995, Vernon's Annotated Civil Statutes. The relators' petition filed in the trial court alleged certain violations of the provisions of Section 9a of Article 827a, Vernon's Annotated Penal Code of Texas, and Section 121 of Article 6701d, Vernon's Annotated Civil Statutes of Texas. Each of said acts was alleged to have constituted an 'act of negligence' and to be a 'proximate cause' of relators' injuries. The defendants in the trial court, who are respondents here, filed a plea of privilege, and the trial court heard the evidence and sustained the plea, and ordered the suit transferred to Tarrant County. The trial court filed findings of fact and conclusions of law, and held 'that the sole proximate cause of the collision in question was the failure of the driver of said pickup to see and avoid striking said trailer.'

The Court of Civil Appeals sustained the judgment of the trial court. At the time this suit was filed and the plea of privilege was sustained, the precise question presented here, that proximate cause in connection with the suit could not be considered in passing upon the venue question, had not been passed upon by this Court...