Kimbell Properties, Inc. v. McCoo, 8739
| Citation | 545 S.W.2d 554 |
| Decision Date | 28 December 1976 |
| Docket Number | No. 8739,8739 |
| Parties | KIMBELL PROPERTIES, INC., Appellant, v. Howard McCOO, Appellee. |
| Court | Texas Court of Appeals |
Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellant.
Brown & Brown, Phil Brown, Lubbock, for appellee.
In this damage suit filed in the county where the cause of action arose, the evidence is factually insufficient to establish that the defendant employee was acting within the course and scope of his employment so as to fix venue against the defendant employer outside the county where its principal office is situated. Reversed and remanded.
Howard McCoo, a Lubbock County resident, filed suit in Lubbock County to recover from Kelby Robertson and Kimbell Properties, Inc., a private corporation, his damages resulting from a collision of automobiles in Lubbock County. The collision occurred when the automobile driven by Robertson struck the rear end of a vehicle driven by John J. Waldrep and propelled it into the rear of McCoo's automobile while McCoo and Waldrep were stopped for a traffic light. McCoo alleged that the negligence of Robertson, while he was working in the course and scope of his employment for Kimbell, caused the collision.
Robertson and Kimbell asserted their respective pleas of privilege to be sued in Pecos County, the county of Robertson's residence, and in Tarrant County, the county in which Kimbell's principal place of business is situated. McCoo controverted the pleas, insisting that his suit could be maintained in Lubbock County, where his cause of action arose, against both Robertson and Kimbell under the subdivisions 9a and 23 exceptions to Vernon's Ann.Civ.St. art. 1995, the general venue statute. The trial court, without stating the bases of its ruling, overruled both pleas. Only Kimbell has appealed, contending that McCoo failed to sustain his burden of establishing venue in Lubbock County as to it under either exception .
Kimbell's first challenge to retention of venue in Lubbock County is that McCoo failed to prove that Kimbell had an agent or representative in Lubbock County at the time the pleaded cause of action arose as he was required to do under subdivision 23. No other venue facts are questioned in this challenge.
Subdivision 23 provides that suits against a private corporation may be brought in the county in which its principal office is situated,
. . . Or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation . . . has an agency or representative in such county; or, if the corporation . . . had no agency or representative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which the plaintiff resided at said time in which the corporation . . . then had an agency or representative. (Emphasis supplied).
These provisions are permissive alternatives; therefore, when the venue facts establish that a cause of action or a part thereof arose in the county where a private corporation is sued, it is not necessary to show that the corporation has an agency or representative in the county. Anderson Company v. South Texas Planting Seed Association, Inc., 472 S.W.2d 592, 594--95 (Tex.Civ.App.--Corpus Christi 1971, no writ). See, also, Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676 (1936). The authorities cited by Kimbell to hold otherwise are those speaking to the last two quoted provisions of the statute which, unlike the provision invoked here, require a showing of a corporate agency or representative in the county of suit. Kimbell's first two points of error are overruled.
The next and last two points are that McCoo failed to satisfy the requirements of either subdivision 9a or subdivision 23 because he adduced 'no evidence' or 'insufficient evidence' of the venue fact that Kimbell's employee, Kelby Robertson, was acting in the course and scope of his employment at the time of the automobile collision. A statement is appropriate.
Kimbell admitted that on the date of the collision Kelby Robertson was its...
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