Martin v. Cable
| Decision Date | 08 May 1940 |
| Docket Number | No. 9021.,9021. |
| Citation | 140 S.W.2d 894 |
| Parties | MARTIN v. CABLE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Action by Mrs. Daisy Martin against Dr. C. H. Cable to recover damages occasioned by death of plaintiff's husband in automobile accident. From an order sustaining plea of privilege of defendant to be sued in county of his domicile, plaintiff appeals.
Order sustaining plea of privilege set aside, and plea overruled and denied.
Morrow & Calvert, of Hillsboro, and Wheeler & Wheeler and A. M. Felts, all of Austin, for appellant.
Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.
This is an appeal from an order sustaining the plea of privilege of appellee, Dr. C. H. Cable, to be sued in Bexar County, the county of his domicile. By her controverting affidavit to the plea of privilege, appellant, Mrs. Daisy Martin, alleged that her suit was for damages occasioned by the death of her husband, which resulted from a collision between an automobile in which he was riding and one driven by appellee, the collision occuring on South Congress Avenue in the City of Austin. Among other grounds of negligence, appellant alleged that appellee caused the collision by operating his automobile at a high, excessive and dangerous rate of speed, and in excess of 20 miles per hour, in violation of the penal laws of Texas; and that such operation under the facts and circumstances detailed established a cause of action based upon a crime and a trespass committed by appellee in Travis County; and that venue of her suit was therefore fixed in Travis County under the terms of Sub. 9 of Art. 1995, which provides that "a suit based upon a crime, * * * or trespass may be brought in the county where such crime, * * * or trespass was committed."
On the hearing of the venue question, appellant offered the testimony of Mrs. Edna Gage, who was driving the Ford coupe in which the deceased husband of appellant was riding, which testimony detailed witness's version of how the collision occurred. Appellant also offered the testimony of a policeman and a plat made by him a few minutes after the collision occurred, showing the position of the automobiles at the time of the collision and where they stopped after the collision. Appellee offered no testimony. Neither party to this suit resides in Travis County. At the conclusion of the evidence and after argument of counsel, the trial court took the matter under advisement and later entered an order sustaining the plea of privilege; hence this appeal.
We have reached the conclusion that the trial court erred in disregarding the undisputed evidence in the case and in sustaining the plea of privilege.
Congress Avenue runs approximately north to south, and the paved portion of it is 90 feet wide, with a painted stripe down the middle. The collision occurred about 11:00 o'clock p. m. Mrs. Gage testified that she was driving a Ford coupe south on Congress Avenue, and that Mr. Martin was riding with her. That just prior to the collision she turned left before reaching the street intersection and across the line marking the middle of the Avenue, facing the car in a southeasterly direction, intending to go to Riley's Cafe, which was situated on the east side of Congress Avenue and on the corner at the intersection of Congress Avenue with another street. At the time she made the left turn she saw three cars coming north on Congress Avenue, but thought that she had time to pass in front of them. That she was traveling slowly and had proceeded only about five or six feet when the car driven by appellee struck the right front fender of her car and the front end with such force that the right door was thrown open and Mr. Martin and she were thrown into the street with such force that he was rendered unconscious, and that he never regained consciousness, and died three days later. She testified that she had driven automobiles for fifteen or twenty years and could estimate the rate of speed one was traveling; and as to the speed appellee's car was traveling witness testified:
C. G. Cook, a traffic officer for the city of Austin, went to the scene of the collision a few minutes after it occurred and made a plat of the ground, a photostatic copy of which is in evidence. From this he testified that when the car of Mrs. Gage was struck on the right front fender and front end, it was headed in "a south and easterly direction" with its front end fourteen feet and one inch from the stripe in the middle of the...
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