J. H. Robinson Truck Lines v. Jones, 10959.

• Decision Date: 14 March 1940
• Docket Number: No. 10959.,10959.
• Parties: J. H. ROBINSON TRUCK LINES, Inc., v. JONES et al.
• Court: Texas Court of Appeals

139 S.W.2d 127

J. H. ROBINSON TRUCK LINES, Inc., v. JONES et al.

No. 10959.

Court of Civil Appeals of Texas. Galveston.

March 14, 1940.

Rehearing Denied April 11, 1940.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Mamie Jones and others against the J. H. Robinson Truck Lines, Incorporated, to recover damages alleged to have been sustained as a result of the negligent operation of defendant's truck. From a judgment overruling the defendant's plea of privilege to have the action tried in the county of defendant's residence, the defendant appeals.

Judgment affirmed.

Ewell H. Muse, Jr., of Austin, for appellant.

McFarlane & Dillard, of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order overruling a plea of privilege in an action brought in the district court of Harris County by the appellees, Mamie Jones et al., against appellant, J. H. Robinson Truck Lines, Inc., seeking the recovery of damages alleged to have been sustained as a result of the negligent operation of a truck driven by an employee of appellant which resulted in injuries to appellees and damage to their automobile.

The appellant filed its plea of privilege to have said suit tried in Nueces County, the county of its residence.

In due time appellees filed their controverting affidavit, in which they embodied their original petition, and claimed venue in Harris County under Subdivision 9 of Article 1995, Revised Statutes of 1925.

Upon a hearing on the allegations of the plea of privilege and the controverting affidavit, appellant's plea of privilege was overruled. No testimony was introduced by appellant at said hearing.

At the request of appellant the court made and filed findings of fact and conclusions of law, to which appellant excepted. The court refused to make and file additional findings at appellant's request, to which ruling it excepted.

The suit arose out of a collision which occurred in the City of Houston on December 6, 1937, between an automobile being driven by an employee of appelllees, in which appellees were riding, and a truck alleged to have been owned by appellant, and driven by one of its employees.

Appellees alleged that they were proceeding in a westerly direction on McGowan Avenue, which intersects Jackson Street at right angles, at the rate of speed of approximately 20 miles per hour when they were struck from the rear by a truck which was being driven in a northwardly direction on Jackson Street by appellant's agent, causing personal injuries to appellees and damages to said automobile. Appellees alleged numerous acts and omissions on the part of appellant and its driver claimed to amount to negligence of appellant and its driver proximately causing said collision.

The court found, among other facts not material to this appeal, that on the date alleged a truck having "Robinson Truck Lines" printed on it crashed into the rear end of the automobile in which appellees were riding, damaging said automobile and injuring appellees, Beatrice Jones and Willa Jones; that said automobile was travelling westward on McGowan Avenue at a time when said truck was travelling northward on Jackson Street and approaching the intersection of McGowan Avenue from the south side; that as said automobile passed the center of said intersection travelling not more than 20 miles per hour, headed westward, said truck was then approximately 40 feet south of said automobile on Jackson Street; that said truck entered said intersection and changed its course to the west behind said automobile and overtook and crashed into the left rear end thereof at a point about 5 feet west of the west side of said intersection; that the driver of said truck was driving same in excess of 20 miles per hour at the time of said collision, and that the operation of said truck at that time at said rate of speed was negligence per se and constituted a trespass. The court further found that the driving of said truck on said occasion into the rear end of said automobile, without negligence on the part of appellees, was also in the nature of a trespass coming within exception No. 9 of Article 1995, Revised Statutes of 1925; that the damages sustained by appellees was the proximate result of negligence on the part of the agent of appellant and that no negligence was shown on the part of appellees which contributed to said collision. The court found that Beatrice Jones testified without objection by appellant that she was present on the occasion of said collision between said automobile "and a truck operated by J. H. Robinson Truck Lines, Inc."; that no proof was offered by appellant that said truck did not belong to it, or that it was not being operated at the time of said collision by its agent, and...