International Harvester Co. v. Faris, 7173
| Decision Date | 24 September 1962 |
| Docket Number | No. 7173,7173 |
| Citation | 360 S.W.2d 864 |
| Parties | INTERNATIONAL HARVESTER COMPANY, Appellant, v. C. E. FARIS et al., Appellee. |
| Court | Texas Court of Appeals |
Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
Douglass, Thompson & Douglass, Pampa, for appellee.
This is a venue case. The plaintiffs, C. E. Faris, et al., will hereafter be referred to as appellees and the International Harvester Company as appellant. Appellees brought this suit in the District Court of Gray County against Utility Oil Company, a Texas corporation, hereinafter called Utility, and International Harvester Company, a foreign corporation, for the wrongful death of J. D. Smithee and wife, Edith H. Smithee, on or about October 28, 1959, when their automobile was struck head-on by an International truck owned by Utility and driven by its employee, Don P. Losher, alleging negligence on the part of both defendants.
Appellant filed its plea of privilege to be sued in Dallas County, the county of its registered office and principal place of business in Texas, and appellees controverted, asserting venue in Gray County under Subdivision 9a and 29a of Article 1995, Vernon's Tex.Civ.St.
The plea was heard on September 15, 1961, and order overruling the plea was entered on October 13, 1961, and from that order appellant perfected this appeal.
Appellees seek to hold venue under Sections 9a and 29a of Article 1995, V.T.C.S., and probably under Section 4 of Article 1995, V.T.C.S. The reason we say 'probably Section 4' is because it is not definitely set out in the controverting plea. We are unable to find any evidence to connect the appellant with this suit other than the fact that the truck in question was an International truck. Section 9a provides as follows:
'Negligence.--A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:
'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 his employment.
In order for plaintiffs to hold venue in Gray County under 9a, they had the burden of establishing that an act or mission of negligence occurred in Gray County. Watkins et al. v. Goolsby et al., Tex.Civ.App., 337 S.W.2d 363. There is nothing in the record to indicate that appellant ever did any act in Gray County, and if appellant was negligent in the acts alleged, there is no evidence to indicate it was in Gray County. The record does not show the appellant ever sold the truck to anyone in Gray County. If appellant was guilty of the negligence as pleaded, there is no evidence to indicate where it happened. Furthermore, there is no evidence that Utility Oil Company had its principal office in Gray County. The question of inhabitancy must be determined, not by residence of any particular officer, but by the principal office of the corporation. Eastman Kodak Co. v. Boyce Motor Lines, Inc., D. C., 74 F.Supp. 981. Section 29a provides as follows:
No grounds can be considered in support of the venue except such as are set up in the controverting affidavit. Papas v. Harmon, Tex.Civ.App., 263 S.W.2d 269; Victoria Bank & Trust Co. v. Monteith et al., 138 Tex. 216, 158 S.W.2d 63 by Com. of...
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