McClanahan v. Cook, 7593
| Decision Date | 14 March 1966 |
| Docket Number | No. 7593,7593 |
| Citation | 401 S.W.2d 352 |
| Court | Texas Court of Appeals |
| Parties | T. E. McCLANAHAN, Appellant, v. Adrian COOK, Appellee. . Amarillo |
Benson & Benson, Lubbock, for appellant.
Thomas W. Gamblin, Post, for appellee.
This is a venue case. Plaintiff below, appellant here, T. E. McClanahan of Lubbock County sued Adrian Cook of Garza County in the former county for damages to his automobile received while sitting on a parking lot in Slaton resulting from a stock trailer with five calves breaking loose from the pickup pulling it, leaving the highway, and running into the parked 1963 Chevrolet.
Appellee filed in due form his plea of privilege to be sued in Garza County, his domiciliary residence. The plea was controverted by an allegation relying upon Exception 9a of Article 1995, Vernon's Ann.Tex.St. That exception as material to this cause reads:
'Negligence.--A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred * * *. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
3. That such negligence was a proximate cause of plaintiff's injuries.'
The court after hearing the evidence offered by both parties sustained the plea of privilege and transferred the case to the adjoining county, Garza County.
We hold that appellant failed in his brief to sustain the burden required under the exception to exclusive venue relied on.
The testimony shows appellant was sitting in the office of the Texaco Bulk Plant, where he works, when he heard a noise. He '* * * finally got up and went to the door and looked.' He saw a two-wheel stock trailer 'setting under the backend of my car.'
He first testified he found the pin that came out of the trailer hitch, that it was a regular bolt 4 1/2 to 5 inches long with no place for a cotter pin or wire to pass through the bottom and no place that a 'half-moon' attachment could have been a part of it and become detached. He testified he gave the bolt to an officer but he never produced it at the plea of privilege hearing. He then testified on cross-examination that he did not know the bolt he picked up came off appellee's pickup, that it could have been out of a trailer or a truck that had been by there earlier in the day. The record is void of any information as to how the trailer became detached from the pickup, and appellant has wholly failed to brief the one point raised in his brief to the effect that the court erred in failing to find that an act or omission of negligence by appellee occurred in Lubbock County, which was a proximate cause of appellant's damage.
Rule 418, Vernon's Ann. Texas Rules, provides the brief of appellant shall contain, inter alia, A discussion of the facts and The authorities relied upon as requisite to maintain the point at issue. Numerous courts have held that where points are not briefed by appellant they may be assumed as waived. Whitson Company v. Bluff Creek Oil Company, Tex.Civ.App., 278 S.W.2d 339, affirmed, 156 Tex. 139, 293 S.W.2d 488; Weatherred v. Kiker, Tex.Civ.App., 357 S.W .2d 182 (N.R.E.); Butterfield Sales Company v. Armstrong, Tex.Civ.App., 278 S.W.2d 194 (N.R.E.); Grady v. Dallas Railway & Terminal Company, Tex.Civ.App., 278 S.W.2d 282 (N.R.E.); Stanford v. Brooks, Tex.Civ.App., 298 S.W.2d 268 (N.W.H.); Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715 (N.W.H.); Hall v. Hall, Tex.Civ.App., 352 S.W.2d 765 (N.W.H.); Kirkman v. Alexander, Tex.Civ.App., 280 S.W .2d 365 (N.R.E.); Kitchens v. Kitchens, Tex.Civ.App., 372 S.W.2d 249 (writ dismissed).
That the citiation of authorities constitutes one of the components of a brief has long been recognized by our courts, even before the promulgation of the above stated rule. Even before the...
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...S.W.2d 931, 941 (1956); Holzapfel v. Brueggman, 404 S.W.2d 916, 920 (Tex.Civ.App. Corpus Christi 1966, writ ref'd n.r.e); McClanahan v. Cook, 401 S.W.2d 352, 354 (Tex.Civ.App. Amarillo 1966, no writ). The Courts of Civil Appeals may only consider properly perfected points of error on appeal......
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