Longhorn Drilling Corporation v. Padilla

• Decision Date: 09 February 1940
• Docket Number: No. 1980.,1980.
• Citation: 138 S.W.2d 164
• Parties: LONGHORN DRILLING CORPORATION v. PADILLA.
• Court: Texas Court of Appeals

138 S.W.2d 164

LONGHORN DRILLING CORPORATION v. PADILLA.

No. 1980.

Court of Civil Appeals of Texas. Eastland.

February 9, 1940.

Appeal from District Court, 117th District, Nueces County; Cullen W. Briggs, Judge.

Action by Angelita Padilla against Longhorn Drilling Corporation for death of her minor son who was killed as the result of being struck by a truck. From an order overruling defendant's plea of privilege to be sued in the county of its residence, defendant appeals.

Reversed and remanded.

Warren P. Castle, of Dallas, and Lewright, Dyer & Sorrell, of Corpus Christi, for appellant.

J. Marvin Ericson, of Corpus Christi, for appellee.

GRISSOM, Justice.

Angelita Padilla sued Longhorn Drilling Corporation, in the District Court of Nueces County, for damages resulting from the death of her minor son who was killed as the result of being struck by a truck, alleged to have been owned by defendant and to have been driven by its agent, servant or employee while acting within the scope of his employment. From an order overruling defendant's plea of privilege to be sued in Live Oak County, the county of its residence the defendant has appealed.

Plaintiff relied upon exceptions 9 and 23 of Art. 1995, R.S.1925, for her authority for maintaining her cause of action in Nueces County. The only proof connecting defendant with the tragedy was made by the introduction in evidence of a certificate from the State Highway Commission showing a receipt from the tax collector of Live Oak County, dated March 14, 1938 for a 1938 license on a 1937 truck with license No. 129-420, showing the then owner to be "Longhorn Drilling", and on May 1, 1938, an additional license fee was paid on said truck by "Longhorn Drilling Co.", and the testimony of a witness to the accident that the truck which struck the child, on June 15, 1938, bore said license number.

Defendant contends plaintiff wholly failed to meet the burden of proof required of her to establish that on June 15, 1938 defendant (1) then owned said truck; (2) that its driver was defendant's agent, and (3) that such agent was at the time acting within the scope of his employment for defendant, and, therefore, the court erred in overruling defendant's plea of privilege. It is essential to maintain the cause of action against defendant in Nueces County not only to show a trespass committed in said county, or that a "cause of action, or a part thereof arose" there, but defendant's responsibility for such trespass, or cause of action, must also be shown. Proof of the fact of the commission of the trespass by defendant is as necessary as proof of the place of its commission. Proof of each element of the trespass must be made and the proof must be such as would support a finding for the plaintiff against the defendant. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Ballard v. Shock, Tex.Civ.App., 91 S. W.2d 385; United States F. & G. Co. v. Garrett, 129 Tex. 587, 105 S.W.2d 868; L. E. Whitham Const. Co. v. Wilkins, Tex.Civ. App., 90 S.W.2d 916; Coyle v. Shailer, Tex. Civ.App., 91 S.W.2d 920; 5 Tex.Jur. 774; 43 Tex.Jur. 857, 859.

"The authorities seem uniform to the effect that the owner of a car who was not present at the infliction of the injury cannot be held liable, except it be shown that the person in charge, not only was the agent or servant of the owner, but also was engaged at the time in the business of his master." Gordon v. T. & P. Merc. & Mfg. Co., Tex.Civ.App., 190 S.W. 748, 750, writ refused. Also see 5 Tex.Jur. 774. In order for plaintiff to maintain the suit in Nueces County against the defendant, among other things, she was required to prove, under the circumstances, that the truck was being driven by an agent of defendant, and that at the time of the injury he was acting within the scope of his employment. John F Camp Drilling Co. v. Steele, Tex.Civ.App., 109 S.W.2d 1038.

In Brown v. City Service Co., 245 S.W. 656, 658, the Supreme Court said: "The Court of Civil Appeals held that the burden of proof was upon the plaintiffs to show that the driver of the automobile did the wrong while acting within the scope of his employment, and complaint of that holding is made here. The holding of the Court of Civil Appeals on that phase of the case is correct; that the driver of the automobile was acting within the scope of his employment at the time of the injury was an element of plaintiffs' cause of action necessary to their recovery." See also Renfro v. Elam, Tex.Civ.App., 117 S.W.2d 133, and Waybourne v. Plains Chev. Co., Tex. Civ.App., 125 S.W.2d 344.

In Weber v. Reagan, Tex.Civ.App., 91 S. W.2d 409, 411, Chief Justice Gallagher said: "The authorities all agree that the owner of an automobile is liable to respond in damages for injuries negligently inflicted in the operation thereof when it is shown that such automobile was being operated at the time by an employee of the owner within the scope of his employment. According to the great weight of authority, when it is shown that the defendant owned the automobile causing the injury and that the same was being operated at the time by his employee, a prima facie case is established, in the absence of testimony tending to show that such employee was not at the time acting within the scope of his employment."

The evidence stated did not conclusively prove ownership of the truck by defendant at the time plaintiff's child was struck. Stated differently, the tax collector's certificate showing payment of license fees on the truck by defendant on March 14, 1938 and May 1, 1938 was certainly not conclusive proof that defendant still owned the truck when it struck plaintiff's child on June 16, 1938. But "A prima facie presumption of ownership arises from the registering of the vehicle, under statutes requiring automobiles to be...