McKinney v. Moon

• Decision Date: 18 June 1943
• Docket Number: No. 2384.,2384.
• Citation: 173 S.W.2d 217
• Parties: McKINNEY v. MOON.
• Court: Texas Court of Appeals

173 S.W.2d 217

McKINNEY v. MOON.

No. 2384.

Court of Civil Appeals of Texas. Eastland.

June 18, 1943.

Rehearing Denied July 16, 1943.

Appeal from District Court, Mitchell County; A. S. Mauzey, Judge.

Action by J. O. Moon against R. W. McKinney to recover overtime wages as a night watchman. From a judgment overruling defendant's plea of privilege, defendant appeals.

Reversed, and transfer of cause to county of defendant's residence ordered.

A. J. Thompson, of Nacogdoches, for appellant.

Thomas R. Smith and B. N. Carter, both of Colorado City, for appellee.

FUNDERBURK, Justice.

In this suit by J. O. Moon against R. W. McKinney (doing business as R. W. McKinney Construction Company), a resident of Nacogdoches County, to recover wages for overtime as a night watchman in the employment of defendant, the Court, upon hearing, overruled a controverted plea of privilege of said defendant, from which action this appeal is prosecuted.

Venue of the case in Mitchell County was sought to be sustained under Exceptions 5 and 9 to the general provision governing venue prescribed in R.S.1925, art. 1995, and amendments thereto, Vernon's Ann.Civ.St. art. 1995.

We readily conclude that Exception 5 has no application, and the judgment overruling the plea of privilege, insofar as dependent upon the authority of that exception, cannot be sustained. According to the pleadings and uncontroverted evidence, plaintiff's contract was oral. Exception 5 is only applicable when the obligation upon which, or by reason of which, the suit is brought is an obligation which the defendant has contracted in writing to perform in the particular county where the suit is brought. If, therefore, the contract of employment—being oral—had provided for payment of overtime in Mitchell County (of which there was neither pleading nor evidence), the venue would not have been authorized by Exception 5.

In our opinion, the obligation sought to be enforced by this suit is not a contract obligation at all, but rather one to make payment in the nature of a penalty purportedly imposed by law. If so, of course, for that reason alone Exception 5 has no application.

But if it be assumed that the written contract to which the State of Texas, acting by the Highway Department, on the one hand, and defendant on the other, are the parties and/or the bond given by defendant to the State to secure performance of said contract, should be held to create obligations of the defendant to the plaintiff, it is, nevertheless, true that no provision of such contract, or contracts, requires payment of anything to plaintiff to be made in Mitchell County. The authorities, we think, well establish this proposition applicable and controlling here: that under Exception 5 to the general rule of venue, it is immaterial that some obligations imposed by a written contract are required to be performed by one or the other party in a particular county; the material and controlling fact being that the particular obligation sought to be enforced by the suit is required by the contract to be performed in a particular county expressly named. Williams v. Doering, Tex.Civ.App., 28 S. W.2d 893; Lyon v. Gray, Tex.Civ.App., 265 S.W. 1094; Wrenn v. Brooks, Tex. Civ.App., 257 S.W. 299; Stribling v. American Surety Co., Tex.Civ.App., 41 S.W.2d 300; Taylor v. Burleson, Tex.Civ.App., 30 S.W.2d...