Mercer v. McCurley

• Decision Date: 05 January 1944
• Docket Number: No. 8153.,8153.
• Citation: 176 S.W.2d 923
• Parties: MERCER v. McCURLEY.
• Court: Texas Supreme Court

Page 923

176 S.W.2d 923

MERCER v. McCURLEY.

No. 8153.

Supreme Court of Texas.

January 5, 1944.

Rehearing Denied February 2, 1944.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Dewey McCurley against T. E. Mercer for personal injuries to plaintiff's wife and damage to an automobile in a collision with defendant's truck. A judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error.

Reversed and remanded with instructions.

Nelson Scurlock, of Fort Worth, and Justice & Justice, of Athens, for plaintiff in error.

White & Yarborough, of Dallas, for defendant in error.

SHARP, Justice.

Action by Dewey McCurley against T. E. Mercer for personal injuries suffered by plaintiff's wife, hospital and medical bills, and damage to an automobile. Defendant filed his plea of privilege, which was controverted, and which, by agreement, was tried along with the merits of the case. Upon submission to a jury on special issues, which were answered favorably to plaintiff, judgment was rendered overruling the plea of privilege and awarding the plaintiff the total recovery of $1,631.75. Upon appeal the judgment was affirmed.

At the time of the accident defendant's truck was operated by his employee, Roy Peddicord, on Highway No. 31 between Athens and Tyler. McCurley was traveling east along the same highway when his automobile collided with the rear of defendant's truck, causing the injuries sued for. The jury found that the operator of the truck had stopped it upon the paved portion of the highway at the time of the collision; that he permitted it to stand upon the paved portion of the highway without a tail light, headlight, or flares burning; and that the above-stated facts were negligence and a proximate cause of the collision.

This suit was filed against T. E. Mercer only, in Henderson County, where the accident occurred. The operator of the truck, Peddicord, was not sued. The defendant filed a plea of privilege to be sued in Tarrant County, the county of his residence. Plaintiff in his controverting affidavit pleaded that the suit came within Exception 9 of Article 1995, Revised Civil Statutes.

Petitioner contends that under the venue statutes this suit cannot be maintained against him in Henderson County. He contends that the facts found show that there was only an omission by an employee to perform a duty, and that such omission to perform a duty on the part of the employee did not constitute a trespass, crime, or offense that would sustain venue in Henderson County against petitioner.

The Court of Civil Appeals held that the trial court properly overruled the plea of privilege because this is a suit based upon a crime within the meaning of the venue statutes. This Court granted a writ of error on the contention that the plea of privilege was improperly overruled.

The pleadings and the evidence show that petitioner's truck was operated, not by himself, but by Roy Peddicord, his employee. Petitioner was not present at the time of the collision, and there is nothing in the record to show that petitioner had anything to do with the acts of the employee at the time of the collision. It also appears that whatever acts were described as being in violation of Articles 801 and 827a, Sections 9-a and 10, of Vernon's Penal Code, and alleged as a basis upon which to plant the charge of crime, offense, or trespass against petitioner, were committed solely by the employee, and not by petitioner.

In the recent case of City of Mineral Wells v. McDonald, Chief Justice, et al., 170 S.W.2d 466, 468, this Court, construing the venue statutes, said:

"Our courts have repeatedly held that the dominant purpose of the venue statutes is to give a person who has been sued the right to defend such suit in the county of his domicile, except under well-defined exceptions. Meredith v. McClendon [C. J.], 130 Tex. 527, 111 S.W.2d 1062, and cases cited. Among the exceptions authorizing the filing of a suit against a person outside the county of his domicile are found Subdivisions 9 and 14 of Article 1995, which read as follows:

"`9. Crime or trespass.—A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.'

* * * * * * *

"To deprive a person of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in the statutes. Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; 43 Tex.Jur., p. 714."

It is well settled that a mere negligent omission of an agent to perform a duty, in the absence of any affirmative act, is not sufficient within the meaning of the venue statutes, in a suit filed against the principal, to sustain venue in a county other than that of the residence of the principal. For a full discussion of the statutes and decisions relating to this question, we refer to the following decisions: City of Mineral Wells v. McDonald, Chief Justice, et al., Tex.Sup., 170 S.W.2d 466; Meredith v. McClendon, Chief Justice, 130 Tex. 527, 111 S.W.2d 1062; Brown Express, Inc., v. Arnold et ux., 138 Tex. 70, 157 S. W.2d 138; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Connor v. Saunders, 81 Tex. 633, 17 S.W. 236; Brown v. Calhoun, Tex.Civ.App., 22 S.W.2d 757; Murray v. Jones, Tex.Civ.App., 56 S.W.2d 276; Crain v. King, Tex.Civ.App., 62 S. W.2d 164; Claer v. Oliver, Tex.Civ.App., 62 S.W.2d 354; 33 Tex.Jur., pp. 88, 89.

From the facts contained in this record it is clear that venue of this suit can not be maintained against T. E. Mercer in Henderson County on the ground that a trespass was committed.

Nor can the venue of this suit be maintained, under the facts of this case, in Henderson County, on the allegation that an offense or crime was committed in that county. There is no evidence even tending to show that petitioner...