McNeill v. Hubert, (No. 1126-5397.)

• Decision Date: 29 January 1930
• Docket Number: (No. 1126-5397.)
• Citation: 23 S.W.2d 331
• Parties: McNEILL v. HUBERT.
• Court: Texas Supreme Court

23 S.W.2d 331

McNEILL v. HUBERT.

(No. 1126-5397.)

Commission of Appeals of Texas, Section B.

January 29, 1930.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by Floyd Hubert against A. W. McNeill. From an order overruling defendant's plea of privilege, he appealed to the Court of Civil Appeals, which certifies questions. Questions answered.

Walter M. Van Nort, of Dallas, for appellant.

Ernest May, of Fort Worth, for appellee.

LEDDY, J.

The Court of Civil Appeals for the Second Supreme Judicial District presents the following statement and questions:

"On January 21, 1928, the appellee Floyd Hubert, a resident citizen of Tarrant county, instituted this suit against A. W. McNeill, the appellant, a resident citizen of Dallas county. The plaintiff alleged that on or about the 19th day of December, 1927, he was the owner of a certain Chevrolet coupé automobile, and on the morning of that day he was driving his automobile within the city of Fort Worth in a southerly direction, and on reaching the intersection of the White Settlement road with Burleson street, through no fault or negligence on his part, collided with a certain Indiana truck owned by McNeill, then being driven by one of the defendant's employees in the course of the defendant's business. It was alleged that the defendant's employee was operating his truck recklessly, at a rate of speed greater than that allowed by law, and that he negligently failed to keep a proper lookout for automobiles on said street intersection; that his negligent operation of the truck in such reckless driving and in his failure to yield to plaintiff the right of way, and in his failure to keep a proper lookout, proximately caused said collision, which resulted in damaging plaintiff's coupé in the sum of $350, for which he prayed recovery.

"In due form the defendant McNeill seasonably filed a plea of privilege, alleging that he was at all times involved a resident citizen in Dallas county, and that no exception to exclusive venue in the county of one's resident existed in said cause, etc.

"In answer to the plea of privilege, the plaintiff Hubert filed on February 10, 1928, his controverting affidavit in which he adopted and made a part thereof the allegations of fact contained in his original petition and alleged that his cause of action was based upon a `trespass committed in Tarrant county,' and that therefore the venue of the suit had been properly laid. On April 21, 1928, the issue formed by the plea of privilege and the controverting affidavit was tried by the court and the plea of privilege was overruled, to which order the defendant McNeill excepted and duly prosecuted an appeal from the order to this court; the transcript of the proceedings being filed in this court on July 13, 1928.

"Upon the day set for the submission of the cause, a motion in behalf of appellee to dismiss the appeal was presented and submitted. The motion was based upon a supplemental transcript showing that subsequent to the appeal and subsequent to the filing of the transcript in this court July 13, 1928, Hubert, the plaintiff below, took a nonsuit and secured a form order of the dismissal of his cause. It was insisted by appellee that the main cause below having been dismissed, the question involved in the appeal from the order overruling the plea of privilege had become moot in that it had been reduced to the status of an abstract question of law which did not require the consideration of this court.

"Upon the reasoning and authorities presented in our original opinion in this case, which will be transmitted herewith and which it is thought to be unnecessary to embody herein, the majority of this court held that the issue presented by the plea of privilege and the controverting affidavit involved a substantial right of the appellant McNeill, and that the judgment of the court below was final upon that issue and appealable to this court, and that the question was not merely abstract or moot, as was contended in behalf of the appellee Hubert, and that we had jurisdiction to pass upon the merits of the appeal and accordingly overruled the motion and proceeded to determine the appeal upon its merits.

"Upon consideration of the merits the record disclosed that the only evidence offered and submitted to the court below on the hearing of the plea of privilege and controverting affidavit was the following agreement entered into by and between counsel for plaintiff and the defendant, to wit: `It is agreed by and between the parties to this cause for the purpose of the plea of privilege and the hearing thereon that on the 19th day of December, 1927, there was a collision between a Chevrolet coupé driven and owned by the plaintiff and an Indiana...