Houston & North Texas Motor Freight Lines v. Watson, 3379

• Decision Date: 19 July 1956
• Docket Number: No. 3379,3379
• Citation: 293 S.W.2d 207
• Parties: HOUSTON & NORTH TEXAS MOTOR FREIGHT LINES, Inc., Appellant, v. Barbara WATSON, by Next Friend, Mrs. Rose Fauber, Appellee.
• Court: Texas Court of Appeals

Page 207

293 S.W.2d 207

HOUSTON & NORTH TEXAS MOTOR FREIGHT LINES, Inc., Appellant, v. Barbara WATSON, by Next Friend, Mrs. Rose Fauber, Appellee.

No. 3379.

Court of Civil Appeals of Texas, Waco.

July 19, 1956.

Rehearing Denied Sept. 6, 1956.

Butler, Binion, Rice & Cook, Houston, for appellant.

Milton M. Brownlee, Madisonville, Campbell & Foreman, Livingston, Bates & Cartwright, Houston, for appellee.

McDONALD, Chief Justice.

This is a venue case. Parties will be referred to as in the Trial Court. Plaintiff, Barbara Watson, sued defendant Motor Freight Lines, alleging that defendant's truck was negligently operated and collided with her automobile owned and driven by her, in Madison County, and caused her serious bodily injuries. Defendant filed a plea of privilege to be sued in Dallas County. Plaintiff filed a controverting plea alleging that venue should be maintained in Madison County under exceptions 9a and 23 of Article 1995, R.C.S. Vernon's Ann.Civ.St. art. 1995. The Trial Court, without a jury, overruled defendant's plea of privilege. Defendant appeals, contending that: 1) There was no evidence that defendant's truck was traveling at a speed faster than a person of ordinary prudence would have driven. 2) There was no evidence that defendant's driver failed to keep a proper lookout. 3) There was no evidence that defendant's driver was driving on his lefthand side of the highway. 4) There was no evidence that defendant's driver was negligent in failing to turn back to his righthand side of the highway. 5) There was no evidence that defendant's driver failed to give plaintiff at least onehalf of the highway. 6) There was no evidence that defendant's driver failed to maintain proper control over defendant's truck. 7) There was no evidence that defendant's driver was negligent in failing to properly apply his brakes. Defendant's contentions 8 through 14 contend that there was insufficient evidence to establish that defendant's driver was negligent in the particulars covered in contentions 1 through 7.

The facts giving rise to this suit are substantially that plaintiff was traveling in a southerly direction on Highway 75 through Madison County in her car, and defendant's truck was traveling in a northerly direction. The road on which both were traveling was a two-lane highway; at a place about 5 miles north of Madisonville, plaintiff's and defendant's vehicles collided, resulting in serious bodily injuries to plaintiff. Plaintiff and defendant's driver each testified that the other was on the wrong side of the road, and that that was what caused the collision and plaintiff's injuries.

The Trial Court filed no separate findings of fact or conclusions of law and none were requested.

An examination of the law applicable to the record before us is necessary.

Our Supreme Court, in North East Texas Motor Lines, Inc., v. Dickson, 219 S.W.2d 795, 796, says:

'The respondents did not request findings of fact by the trial court, but chose to appeal without having the benefit of such findings. We must, therefore, presume that the trial court, resolved every disputed fact issue in favor of petitioner, the winning party, and must consider only the evidence which supports its judgment, disregarding all evidence in conflict therewith.'

This court held in Wash v. Buster, 226 S.W.2d 241, 243:

'The trial being before the court without the aid of a jury and the record containing no findings of fact or conclusions of law and no request for the same, under such circumstances we must presume the court found every issuable fact pleaded by the plaintiff and tendered by the evidence in support of the court's action in overruling the plea.'

The case of Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897, says:

'Where a case is tried to the court and no findings of fact or conclusions of...