McIlhenny v. Hardy

• Citation: 226 S.W.2d 886
• Decision Date: 05 January 1950
• Docket Number: No. 12156,12156
• Parties: McILHENNY v. HARDY.
• Court: Texas Court of Appeals

Page 886

226 S.W.2d 886

McILHENNY v. HARDY.

No. 12156.

Court of Civil Appeals of Texas, Galveston.

Jan. 5, 1950.

E. C. King, of Freeport, Kenneth W. Bing, of Velasco, for appellant.

H. C. Davidson, of Houston, for appellee.

GRAVES, Justice.

This appeal-in a plea of privilege case-is from a judgment of the county court at law of Harris County, overruling the plea-of-privilege of the appellant to be sued in the county of his residence, Brazoria, upon a cause-of-action for damages, resulting from a collision between their respective automobiles in Harris County, filed in that county against him, by the appellee.

The proceedings in the trial court followed the usual and proper pattern of such suits, and the venue-issue was joined in the regular way-that is, by the filing of appellant's plea-of-privilege, the appellee's controverting-affidavit thereto, and the hearing of evidence thereon by the court. No findings-of-fact, or law, were requested or filed.

The court's judgment, pursuant to such procedure, thus stated the ground of its action: '* * * the Court having heard and considered such plea of privilege and controverting plea, and the evidence and argument of counsel thereon, and being of the opinion that the plea of privilege should be overruled;

'It is accordingly ordered, adjudged and decreed by the Court that such plea of privilege be and the same is hereby overruled * * *.'

The appellee in his trial petition and his controverting-affidavit, as well, thus alleged the ground of venue in Harris County '* * * the defendant W. F. McIlhenny committed, within the meaning of Exception 9, to Article 1995, of Vernon's Annotated Civil Statutes of the State of Texas, as amended, a trespass, in Harris County, Texas, against this Plaintiff, and that the defendant W. F. McIlhenny committed, within the meaning of Exception 9, to Article 1995, of said statutes, an offense and crime, in Harris County, Texas, against this plaintiff, and that by reason of such actions of the defendant, and by reason of said Section 9, Article 1995, of said statutes, this suit may be brought in the County of Harris, State of Texas, wherein said crime, offense or trespass was committed, * * *.'

In his points-of-error for the reversal of such judgment, the appellant categorically asserts that the evidence wholly failed to show:

First, 'that the said defendant committed any crime whatever against the plaintiff, occasioned by such automobile collision, or to occasion the same, within the meaning of Exception 9, to Article 1995';

Second, 'that the said defendant committed any such trespass against plaintiff, occasioned by such automobile collision within the meaning of Exception 9, to Article 1995, * * * which would authorize the filing and maintenance of a suit for damages against the said defendant, in Harris County, Texas';

Third, 'that the said defendant, committed any active trespass against plaintiff, which occasioned such automobile collision within the meaning of Exception 9, to Article 1995, * * * and that if any trespass at all was committed against the said plaintiff, it was no more than a passive trespass, or failure to do or perform some act or thing, which he should have done under the conditions faced by him at the time.'

He goes on to urge, further, that the appellee himself was shown to have been negligent in the driving of his own automobile, and that such negligence on his part was the proximate cause of their collision, to a...