McFarlin v. Taylor, 7739

• Decision Date: 02 October 1967
• Docket Number: No. 7739,7739
• Citation: 420 S.W.2d 188
• Parties: Joe Wayne McFARLIN, Appellant, v. Delta Christiansen TAYLOR, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 188

420 S.W.2d 188

Joe Wayne McFARLIN, Appellant, v. Delta Christiansen TAYLOR, Appellee.

No. 7739.

Court of Civil Appeals of Texas Amarillo.

Oct. 2, 1967.

Vickers, Vickers & Garner, Lubbock, for appellant.

Key, Carr & Clark, Donald M. Hunt, Lubbock, for appellee.

NORTHCUTT, Justice.

This is a venue case. Plaintiff below, appellee here, Delta Christiansen Taylor, of Lubbock County sued Joe Wayne McFarlin of Hale County in the District Court of Lubbock County for damages due to the death of her husband resulting from an accident occurring on October 30, 1965, in the town of New Deal, Lubbock County, Texas. Plaintiff alleged that defendant, Joe Wayne McFarlin, while driving his car in a southerly direction on U.S. 87 negligently struck and killed the plaintiff's husband. Defendant filed in due form his plea of privilege to be sued in Hale County, his domiciliary residence. The plea was controverted by an allegation relying upon Exception 9a of Article 1995, Vernon's Ann.Tex.Civ.St. That exception provides as follows:

'9a. 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 or in the county where the defendant has his domicile. 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 a hearing was had, overruled defendant's plea of privilege and held appellant's plea of privilege was overruled and the cause ordered to remain in the District Court of Lubbock County, Texas. From that ruling defendant perfected this appeal. The defendant will hereafter be referred to as appellant and plaintiff as appellee.

Appellant presents this appeal upon three points of error. The first point is that the court erred in overruling appellant's plea of privilege for the reason that there was no evidence to sustain venue in Lubbock County, Texas. The second point contends there was insufficient evidence to sustain such holding and the third point that such action was manifestly unjust and against the great weight and preponderance of the evidence. Since we sustain appellant's first point, we will not discuss the remaining two points.

The fact that appellant struck and killed the husband of appellee without some proof of negligence on the part of appellant is not sufficient to hold venue in Lubbock County. This record is void of any testimony of how the accident happened and neither is there any evidence to show appellant was negligent in any manner. There is no evidence that appellant was speeding or that he failed to keep a proper lookout or could have seen the deceased or any other acts of appellant to constitute negligence on his part. Negligence or a failure to perform a duty required by law is never presumed as a fact but must be proved by evidence and the burden of proving it is on the party seeking a recovery of damages by reason of such negligence or failure of duty. Jones v. Nafco Oil And Gas, Inc., 380 S.W.2d 570 (Tex.1964); Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.--Tyler, 1966, writ ref'd n.r.e.); McCarty v. White, 314 S.W.2d 155 (Tex.Civ.App.--Eastland, 1958, no writ).

In order to maintain venue in a county other than the residence of defendant under Subsection 9a, a plaintiff must establish by a preponderance of the evidence that an act of negligence which was a proximate cause of the injury was committed in the county where suit is brought by the defendant or those for whose negligent conduct he would be legally liable. Southland Beauty Shops, Inc. v. Foreman, 319 S.W.2d 737 (Tex.Civ.App.--Houston, 1958, writ dism'd); Campos v. Smith, 386 S.W.2d 823 (Tex.Civ.App.--San Antonio, 1965, no writ).

There is no evidence that McFarlin ever saw the deceased or knew anything about his presence until after he struck something. Neither is there any other evidence showing appellant was guilty of any negligence other than the fact that deceased was hit and injured . The proof that an accident occurred is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (1937); Austin Bridge Company v. Polanca, 300 S.W.2d 173 (Tex.Civ.App.--Eastland, 1957, no writ); Conner v. Chatman 272 S.W.2d 136 (Tex.Civ.App.--Galveston, 1954, no writ).

We are of the opinion, and so hold, that there is no evidence in this record showing any negligence on the part of appellant causing the injury and death of appellee's husband; but should we be wrong in so holding, we further hold the evidence was insufficient to establish by a preponderance of the evidence such facts as to sustain venue in Lubbock County.

Judgment of the trial court is reversed and rendered and here ordered that the case be transferred to the District Court of Hale County, Texas.

CHAPMAN, Justice (dissenting).

I regret that I am unable to agree with the above holding to the effect there is not any probative evidence to support the trial court's implied finding by a preponderance of the evidence that an act or omission of negligence occurred in the county where suit was filed; that such act or omission was that of the defendant; and that such negligence was a proximate cause of the injuries resulting in the death of appellee's husband.

Since the opinion reversed the case on the no-evidence point alone, it appears the court has completely disregarded the inferences that must be indulged in favor of the implied findings of the trial court.

In Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953), a venue case, the Supreme Court established the following principles of law:

'If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal . This court, in the case of Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, announced the correct rule when testing the probative force of the evidence when it said: 'The honorable Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence; but it could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff'--then it is to be concluded that there is evidence to support the verdict.'

No findings of fact or conclusions of law were filed by or requested of the trial judge. Such being the situation, our Supreme Court in Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951) has held:

'The trial court's judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.'

Neither Renfro Drug Co. v. Lewis, supra, nor the cases it cited on the point under discussion are venue cases but our Supreme Court in discussing the law where 'no evidence' points are raised has held: 'The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case.' Banks v. Collins, supra.

In Banks v. Collins, supra, that court also held:

'* * * in a case wherein the contention is made * * * that there is no evidence supporting the implied finding of fact in favor of the successful party by the trial court, the Court of Civil Appeals is required to follow the rule, which, in effect, says: If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding.'

When the evidence is considered with the inferences we must indulge; i.e., discard all evidence opposed to the judgment rendered and consider only that evidence most favorable to the issue ¹ we have the written confession made by Joe Wayne McFarlin after due warning to him given by the district attorney that on the night in question he was the driver of the automobile which hit a man while he was driving through New Deal in ...