Kirksey v. Warren
| Decision Date | 09 June 1961 |
| Docket Number | No. 15854,15854 |
| Citation | 348 S.W.2d 33 |
| Parties | John Neal KIRKSEY et al., Appellants, v. W. R. WARREN et al., Appellees. |
| Court | Texas Court of Appeals |
Bailey & Williams, Dallas, for appellants.
Clifford S. Dillard; Touchstone, Bernays & Johnston, Dallas, for appellees.
This is a venue case. W. R. Warren, and his wife, Freda Warren, brought this suit against Elizabeth Mitchell and also against John Neal Kirksey and Richard Walker, for damages arising out of an automobile collision on the Dallas-Fort Worth Toll Road. Plaintiffs alleged various acts of negligence against each of the defendants, such negligence being alleged to have proximately caused the injuries to plaintiffs. The defendants John Neal Kirksey and Richard Walker filed their pleas of privilege to be sued in Tarrant County, the county of their residence. Plaintiff filed controverting affidavit in which it was contended that venue was proper in Dallas County by virtue of the exceptions under subd. 4 and subd. 29a, Art. 1995, V.A.C.S. Thereafter, the defendant Elizabeth Mitchell, who resided in Dallas County, filed her answer and also a cross-action against the defendants Kirksey and Walker. In this cross-action she alleged that it was the negligence of Kirksey and Walker that caused the clamity and should any recovery be made against her she wanted a judgment over and against the other defendants. Defendant Kirksey filed his plea of privilege as against Mitchell's cross-action, seeking to be sued in Tarrant County. Defendant Mitchell filed a controverting plea in which she claimed that her cross-action was properly maintainable against Kirksey in Dallas County by virtue of subd. 4, Art. 1995, V.A.C.S. As to the cross-action brought by defendant Mitchell, the defendant Richard Walker was never served with citation and petition and that phase of the case was not before the trial court for consideration. The trial judge heard the testimony, without a jury, and overruled all pleas of privilege. From such judgment appellants Kirksey and Walker appeal complaining that there was no evidence, and in the alternative there was insufficient evidence, to support the judgment.
Appellee Warren's petition alleged that on the date in question he was driving his automobile, accompanied by his wife, Freda Warren, in an Easterly direction on the Dallas-Fort Worth Toll Road; that said toll road had three lanes of traffic for vehicles proceeding Easterly, and three lanes of traffic for vehicles proceeding Westerly, and that said lanes were divided by a median strip about 40 feet wide. He further alleged that a vehicle driven by the defendant Mitchell suddenly came across the median strip, traveling in a Westerly direction, and collided with his automobile, resulting in severe injuries and damages. It was further alleged that prior to the collision the appellant Mitchell was traveling in a Westerly direction and to the rear of the vehicle driven by the defendant Kirksey, who then and there was engaged upon a business for the partnership known as K & W Speedometer Service Company, and that a tire on the vehicle driven by Kirksey blew out allowing the automobile to veer to the left which caused the Mitchell automobile to drive across the median strip into the Warren automobile. Elizabeth Mitchell was alleged to have been guilty of negligence in driving at an excessive rate of speed; failing to keep her automobile under proper control; failing to apply her brakes; allowing her automobile to be driven across the median strip and into the automobile driven by Warren; and in failing to sound her horn. Kirksey was alleged to have been guilty of negligence in operating his vehicle with a defective tire; and failing to keep the vehicle under proper control; and in causing Mitchell to drive her automobile onto the wrong section of the turnpike. Warren sought judgment against all defendants, jointly and severally.
Kirksey testified that he was a partner in the business known as K & W Speedometer Service Company, said business being a Dallas enterprise in which Richard Walker was also a partner. Kirksey testified that on the day in question he was proceeding to Fort Worth from Dallas on the Dallas-Fort Worth Toll Road in a vehicle which belonged to the partnership. Kirksey further testified that there was a blowout on the vehicle; that the tire that blew out was a recapped tire which had been purchased and recently put on the vehicle; that such blow-out occurred while he was driving at approximately 60 to 65 miles per hour, and said blow-out causing the tread on the tire to come off of the tire. He further testified that he had been driving his vehicle in the center lane of West bound traffic, that after the blow-out occurred he pulled across to the extreme left-hand lane of the West bound traffic, moving off the road completely onto the median strip. He said that when the blow-out occurred he was approximately 1/3 of a block ahead of the appellee Mitchell, who was driving in the left-hand West bound lane adjacent to the center lane in which his vehicle was being operated.
Freda Warren testified that on the day in question she and her husband were proceeding in their vehicle from Fort Worth to Dallas on the toll road and were operating their vehicle in the lane next to the median strip. She said that their vehicle was struck by another car but that she did not see the car at the instant of the collision and had no knowledge as to who was driving the car. There was no controversy but that the Warren...
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