Goldston v. Wieghat
| Decision Date | 18 October 1951 |
| Docket Number | No. 12319,12319 |
| Citation | 243 S.W.2d 404 |
| Parties | GOLDSTON et al. v. WIEGHAT et al. |
| Court | Texas Court of Appeals |
George G. Roane, Rosenberg, Fulbright, Crooker, Freeman & Bates, W. N. Arnold, Jr., Russell Talbott and Austin C. Wilson, all of Houston for appellants, W. L. Goldston, W. J. Goldston, R. A. Welch, Mound Co. and Fidelity Oil & Royalty Co., Houston, Texas.
F. Warren Hicks, of Houston, atty. for appellant J. B. Cutbirth.
W. G. Walley, Jr., Beaumont and L. F. Hardin, Rosenberg (W. G. Walley, Jr., Beaumont, of counsel) for appellees.
This is an appeal from an order of the District Court of Fort Bend County overruling a plea of privilege in an action brought by appellees, the surviving widow and children of Willie Henry Wieghat, deceased, against W. L. Goldston and others seeking recovery of damages alleged to have been sustained by them as a result of the alleged negligent construction and maintenance by appellants of a pipe line for the transportation of inflammable gas across a public highway in Fort Bend County, Texas, which caused the death of Willie Henry Wieghat.
Appellants filed their plea of privilege to have said suit maintained in Harris County, the alleged county of their residence.
In due time appellees filed their controverting affidavit in which they claimed venue in Fort Bend County under Subdivision 9 of Art. 1995 Revised Civil Statutes of 1925, Vernon's Ann.Civ.St. art. 1995, subd. 9.
Upon a hearing on the allegations of the plea of privilege and appellees' controverting affidavit before the Court without a jury, appellants' plea of privilege was overruled.
No findings of fact or conclusions of law were requested by the parties or filed by the trial court.
Appellees alleged that Mr. Wieghat was employed by Fort Bend County as the operator of a road maintainer and that on October 25, 1950, while operating his machine in the ditches of a Fort Bend County road gas from a pipe line owned and operated by appellants which crossed the public road upon which he was working became ignited and burned Mr. Wieghat and the maintainer operated by him, and that he died on October 27, 1950, from the injuries thus sustained.
Appellees contended that appellants had committed a crime in Fort Bend County within the purview of the 'crime or trespass' exception of the venue statute, Art. 1995, Subdivision 9, by causing a pipe line to be constructed across a public highway at a depth of less than seven inches below the surface of the lowest point of the bar ditches thereof in violation of Art. 784 of the Penal Code of Texas. They alleged in the alternative that, if they were mistaken in their allegations that the death of Willie Henry Wieghat was the result of said actions of appellants, that then the numerous wrongful acts on the part of appellants had constituted a public nuisance which caused the injuries claimed by them.
It is undisputed in the record that appellants had developed certain wells in Fort Bend County for the production of natural gas on leases owned by them and that they had constructed a gathering line from these wells to the gas pipe line of the United Gas Corporation some distance north of their production, including the gas line involved in this suit. In order to connect the pipe line from appellants' leases with the United Gas Corporation's line, the gas lines, including the gas line involved in this action, were necessarily laid across public roads in Fort Bend County.
Appellant, W. L. Goldston, testified that he had made the contract for the construction of said pipe lines under a verbal contract with the Oilfield Salvage Company under what he termed a 'turnkey contract' and that the Oilfield Salvage Company had attended to the marking of the pipe line across the public highways; that his instruction to them was that they should lay the line across the fields 18 inches from the top of the line to 18 inches below the level of the ground; that appellants did not have permits to cross the county roads but that they had authorized the Oilfield Salvage Company to get their own permits for crossing any highways and to meet the requirements of the Commissioners for their construction over those highways; and that neither he nor his associates had talked with the members of the Commissioners Court of Fort Bend County about the matter. On October 25, 1950, Willie Henry Wieghat, who was employed as a road maintainer operator for Fort Bend County under the direction of the County Commissioners, began working the bar ditches of the public road on which the explosion occurred. He followed another maintainer that was cutting into the ditches to 'shove up' the dirt and debris taken from the ditches by the first maintainer. An explosion occurred as a result of a cut in appellants' pipe line in a ditch where he was working with his maintainer. He sustained third degree burns as a result of the explosion and fire and died two days later.
Subdivision 9 of Art. 1995 of the Revised Civil Statutes of 1925 reads 'Crime or trespass.-A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, whether committed by the defendant or by his agent or representative, or in the county where the defendant has his domicile.'
The term 'trespass', as that term is used in the above statute relating to the venue of actions, is intended to embrace only actions for such injuries as result from affirmative acts or wrongful acts wilfully or negligently committed and not those injuries which result from a mere omission to perform a duty. J. H. Robinson Truck Lines v. Jones et al., Tex.Civ.App., 139 S.W.2d 127, and authorities there cited.
Art. 784 of the Penal Code reads: 'Whoever shall wilfully obstruct or injure or cause to be obstructed or injured in any manner whatsoever any public road or highway * * *, within this State, shall be fined not...
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...be maintained in such county. Gann v. Murray, Tex.Sup., 246 S.W.2d 616; Vance v. Jones, Tex.Civ.App., 246 S.W.2d 244; Goldston v. Wieghat, Tex.Civ.App., 243 S.W.2d 404. However, in the case of Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897, the court further held that ......
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