Gebert v. Clifton, 1580
| Decision Date | 22 June 1977 |
| Docket Number | No. 1580,1580 |
| Citation | 553 S.W.2d 230 |
| Parties | George GEBERT, Appellant, v. Arthur CLIFTON, Jr., et ux., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Gay C. Brinson, Jr., Vinson & Elkins, Houston, for appellant.
Richard W. Mithoff, Jamail & Gano, Houston, Warren E. Burnett, Odessa, for appellees.
This is an appeal from the judgment of the 55th District Court of Harris County, Texas overruling appellant's plea of privilege to have this action transferred to Jim Wells County, Texas, the county of appellant's residence. Appellees, Arthur Clifton, Jr., and his wife, Nada Clifton, brought this action to recover for the personal injuries sustained by Mrs. Clifton in an intersectional collision in Odessa, Ector County, Texas between a vehicle owned and driven by Nada Clifton, and a vehicle owned by defendant Wilson Industries, Inc., and driven by Wilson's employee, George Gebert. Appellees filed this action in Harris County, appellant filed his plea of privilege to be sued in Jim Wells County, and appellees filed a controverting affidavit, alleging venue to be established in Harris County under subdivisions 4 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964).
Appellees' controverting affidavit incorporated by reference their original petition, which alleged that defendant Wilson Industries, Inc. and/or Wilson Downhole Engineering, a division of Wilson Industries, Inc. (hereinafter Wilson) owned the vehicle driven by Gebert on the occasion in question; Gebert was the employee of Wilson; Gebert was negligent in causing the automobile accident made the basis of this suit; such negligence was imputable and chargeable to the defendant Wilson; at all times material to this cause of action Gebert was driving such vehicle within the course and scope of his employment for Wilson and with the full permission and consent of Wilson; and the main office of Wilson is in Houston, Harris County, Texas.
The district court overruled appellant's plea of privilege. We affirm.
Appellees concede that subdivision 29a has no application to this case. Appellant concedes that the appellees have proven that Wilson is a resident of Harris County, and that Gebert, the non-resident defendant, is at least a proper party to appellees' claim against Wilson. Appellant contends that the appellees have not, as required by subdivision 4, pleaded and proved that they have in fact a cause of action against Wilson, the resident defendant.
Thus, the only issue left to be resolved by the trial court was whether at the time in question George Gebert was acting within the scope of his employment, thereby rendering defendant Wilson liable under the doctrine of respondeat superior.
Gebert's residence and normal place of work was in Alice, Jim Wells County, Texas. He was employed by Wilson to manage its office in Alice. Mr. Mac Ponder, the district manager for Wilson and supervisor of Gebert, testified on deposition that he sent Gebert from the office in Alice to the office in Odessa because the Odessa office manager had been fired, and it was necessary to have Gebert travel to Odessa immediately to take care of the files and business in the Odessa office. He further testified that at the time and on the occasion in question, Gebert had full permission and authority to use the car owned by Wilson; Gebert was using the car in the furtherance of Wilson's business in Odessa; Wilson furnished office managers transportation only when on special assignment; Wilson pays the expenses of its employees that are out of town on business; and Wilson would have paid Gebert's taxi fare from his motel to the Odessa office had no company car been provided. Gebert testified on deposition that the vehicle was furnished him in furtherance of his job and...
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