Harrison v. Oliver

• Decision Date: 09 December 1976
• Docket Number: No. 16783,16783
• Parties: George W. HARRISON, Appellant, v. Jimmy OLIVER et al., Individually and d/b/a Oliver Brothers, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 229

545 S.W.2d 229

George W. HARRISON, Appellant, v. Jimmy OLIVER et al., Individually and d/b/a Oliver Brothers Appellees.

No. 16783.

Court of Civil Appeals of Texas Houston (1st Dist.)

Dec. 9, 1976.

Rehearing Denied Jan. 6, 1977.

W. W. Kilgarlin, Houston, for appellant; Kilgarlin, Dixon & Hancock, Houston, of counsel.

Bennett & Keeling, Kenneth H. Keeling, Huntsville, for appellees.

PEDEN, Justice.

Plaintiff George Harrison appeals from an order sustaining the defendants' plea of privilege after a non-jury hearing. Appellant relies on Subdivision 9a of Article 1995, V.C.S., to hold venue in Harris County. Neither findings of fact nor conclusions of law were filed. The plaintiff alleged in his petition that the defendants were his employers and were not subscribers under the provisions of the Texas Workmen's Compensation Act, so he brought this suit under Sections 1 and 4 of Article 8306, Vernon's Texas Civil Statutes. He was the only witness who testified in the venue hearing.

The appellees' residence and sawmill are in Walker County. Harrison worked for them as a truck driver and also lived in Walker County. The day of the injury Harrison drove a truck of crossties to a plant in Harris County. The truck, chains, and boomers were furnished to the plaintiff by the defendants in Walker County. The crossties are held in place by chains and boomers. A boomer is a device used to tighten the chains. Its basic parts are two hooks and a handle. The hooks are put into the chain and the boomer handle is pulled down to tighten the chain and secure the load. The appellant climbed on the truck and was attempting to tighten the supporting boards with the boomer when it slipped and he fell off the truck, injuring his hip. His petition alleged and he testified that he was injured as a result of the negligence of the defendants because the boomer they furnished was, as he told them, worn out and its teeth did not properly engage the chain causing the boomer to slip but they did not correct the faulty equipment or given him new equipment to work with. Further, 'that such conduct of his employers was negligence and that such conduct in failing to provide him with suitable equipment for his job as described above was a proximate cause of the injuries that plaintiff sustained.'

This suit was filed in Harris County. The defendants filed a plea of privilege to be sued in the county of their residence. The plaintiff's controverting plea contends venue was proper in Harris County under Subsection 9a of Article 1995, V.T.C.S. It specifies these facts a plaintiff must prove to sustain venue under this exception in a county other than that of defendant's residence:

'1. That an act or omission of negligence occurred in the county where suit was filed.

'2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of employment.

'3. That such negligence was a proximate cause of plaintiff's injuries.'

The appellant's only point of error is that the trial court erred in sustaining the defendants' plea of privilege because their negligence was continuous from one county to the next. He argues that whether or not the truck with defective boomer was given to him in Walker County, the act of negligence followed him into whatever county he may have gone in order to perform his work. He cites Holiday Lodge Nursing Home, Inc. v. Huffman, 430 S.W.2d 826 (Tex.Civ .App.1968, no writ), for its holding that a master has a continuous and non-delegable duty to supply an adequate force of competent workmen for carrying on the work requested of the employees with reasonable safety. He says 'Appellant submits that there is no distinction between an employer furnishing a sufficient number of employees to aid an employee to accomplish a given task and an employer furnishing...