John F. Buckner & Sons v. Allen
| Decision Date | 17 November 1954 |
| Docket Number | No. 10256,10256 |
| Citation | 272 S.W.2d 929 |
| Parties | JOHN F. BUCKNER & SONS, Appellants, v. Mrs. Ruth ALLEN, Appellee. |
| Court | Texas Court of Appeals |
M. J. Flahive, Victor B. Rogers, Austin, for appellants.
Snodgrass & Smith, San Angelo, for appellee.
This is an appeal from an order overruling a plea of privilege filed by appellants.
The suit was instituted by Mrs. Ruth Allen against appellants and others for personal injuries and property damages alleged to have been caused by negligence of defendants when Mrs. Allen's automobile skidded on a portion of the highway under construction and alleged to have been made slick by oil applied by defendants and by rainfall on the oil, between San Angelo and Carlsbad in Tom Green County.
Allegations were made that appellants had the prime construction contract with the State and the other defendants were associated in the work, and that there were provisions in the prime contract made for the benefit of the plaintiff as one of the traveling public.
The defendants, appellants herein, composed the partnership firm of John F. Buckner & Sons, were all residents of Johnson County, Texas, and they duly filed their plea of privilege to be sued there. The other defendants, L & S Contractors and C. Hunter Strain, filed only formal answers.
The plea of privilege was duly controverted on the ground that plaintiff's cause of action comes within the meaning of exceptions of Article 1995, V.A.C.S.
The trial court, without a jury, heard the pleas and evidence on the issues raised and overruled the plea of privilege, to which action appellants excepted and gave notice of appeal to this Court.
The appeal is before this Court on six points, and are that the trial court abused its discretion in reopening the case and taking additional testimony without the consent of appellants, and in the absence of appellants and counsel.
The remaining five points are directed to the failure of appellants to establish venue in Tom Green County under Sections 4, 5, 9a and 29a, of Article 1995, in that plaintiff was not a party to and had no privity with the prior contract, or the subcontracts; that no sufficient evidence was submitted to prove that any party defendant resided in Tom Green County at the time the suit was filed, or that plaintiff had a bona fide cause of action against any of the defendants who was a resident of said county; no sufficient evidence was offered that an act or omission of negligence occurred in the county where the suit was filed, and that such negligence was a proximate cause of plaintiff's injuries; that subsection 29-a is not applicable, and that appellants were not shown to be necessary parties.
The first assignment is directed to the action of the court in reopening the case and taking additional testimony that Hunter Strain, one of the defendants had resided in Tom Green County continuously from prior to the time of the accident to the time of the taking of such additional testimony.
We do not believe that an abuse of discretion has been shown and that the court was justified in reopening the case, and we would not reverse the case unless it appears that the appellants have been prejudiced.
Due notice was given all parties of the time of the reopening of the case, and no complaint is made except that the appellants and their attorney would have had to make a trip of over 200 miles to be present at such hearing, and no prejudice has been shown.
The only evidence taken on the reopening of the case was to the effect that Hunter Strain, one of the defendants, had resided continuously in Tom Green County for the past three or four years, and appellant's witness, Lassiter, testified substantially to the same effect at the first hearing.
Rule 270, Texas Rules of Civil Procedure; 3-B Tex.Jur. 411 (Appeal and Error) Sec. 924.
The trial court overruled appellant's plea without making findings of fact or conclusions of law which is proper.
The inquiry here is whether there is any ground upon which the order can be sustained, since if there is any evidence upon which the judgment can be upheld it is our duty to do so, and every issue raised by the testimony will be resolved in favor of the judgment.
Gaford v. Arnold, Tex.Civ.App., 238 S.W.2d 225; 3-B Tex.Jur. 278 (Appeal and Error, Sec. 873).
The contract between the State and Buckner & Sons provided for the construction of a project entirely within Tom Green County, and the place of alleged injury was in the same county.
The testimony is that appellee was enroute from San Angelo to Sterling City, her home, in her automobile driven by a Mrs. Martin, and upon approaching a section of the road under construction in the vicinity of Mule Creek, saw a barricade with a sign directing the traveling public up onto such portion which had reached the stage where a coat of oil without any substance on top of it had been spread on the highway, and at the time plaintiff's automobile approached, it had been raining and the flagman had got into his pickup. It is stated that if water gets on fresh oil it tends to become slicker than before.
The flagman testified that the rain had made the road slick and that when appellee came along, the road was awful slick.
The testimony is that as appellee approached the scene of the subsequent accident and a barricade, there being no other place to go, drove upon the highway. The allegations and evidence is that there were no signs warning the traveling public in general, and in particular the driver of appellee's rehicle, that the portion of the road upon which they were about to enter was slick and in a dangerous condition, and appellee's driver could not see upon the road and observe the fresh oil.
The flagman was in his car and had the flag stuck out the left window; that he made no conscious effort to move the flag at appellee's car. When appellee's car was driven onto the road it began to slip and went out of control, making several complete turns, and collided with a truck traveling in the opposite direction.
Certain damages were alleged to appellee's car and personal injuries to her person.
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