Meredith v. McClendon, 7242.

• Decision Date: 12 January 1938
• Docket Number: No. 7242.,7242.
• Citation: 111 S.W.2d 1062
• Parties: MEREDITH v. McCLENDON, Chief Justice, et al.
• Court: Texas Supreme Court

111 S.W.2d 1062

MEREDITH v. McCLENDON, Chief Justice, et al.

No. 7242.

Supreme Court of Texas.

January 12, 1938.

Suit by Clifton James against Carlton Meredith for injuries sustained by plaintiff while an employee of the defendant, allegedly through negligence of the defendant in not protecting machinery around which the plaintiff was working with proper guards. Judgment sustaining the defendant's plea of privilege was reversed by the Court of Civil Appeals, 101 S.W. 2d 866, and, on the refusal of that court to certify questions to the Supreme Court, the defendant petitions Hon. James W. McClendon, Chief Justice, and others for mandamus to require the Court of Civil Appeals to certify to the Supreme Court for decision the question of law as to whether the Court of Civil Appeals was correct, based on ground that the opinion of the Court of Civil Appeals is in conflict with the opinions of the Supreme Court, the opinions of that court itself, and of the opinions of other Courts of Civil Appeals.

Decree in accordance with opinion.

Critz & Woodward, of Coleman, for relator.

Baker & Baker, of Coleman, for respondent James.

SHARP, Justice.

Relator seeks by mandamus to compel the honorable Court of Civil Appeals for the Third judicial district to certify to this court for decision the question of law whether that court was correct in reversing the judgment of the district court, which sustained relator's plea of privilege to be sued in Dallas county, instead of Coleman county, as shown by the opinion of the Court of Civil Appeals in the case of James v. Meredith, 101 S.W.2d 866.

Clifton James filed in the district court of Coleman county a suit for damages against Carlton Meredith. The parties in that suit will be designated here as they were in the trial court. The petition alleged that James resided in Coleman county and Meredith in Dallas county. For cause, plaintiff alleged that defendant, who resided in Dallas county, owned and operated certain machinery in Coleman county, known as a "booster gas plant," a machine for forcing natural gas through pipes from the plant to other places in Coleman county; that defendant employed plaintiff to operate the machine; that the machine was not properly protected by guards to prevent the operator of same from getting his hands or fingers in the machinery; and that by reason of the negligence and omission of defendant to have the machine protected by guards, plaintiff, who was a young inexperienced operator, got his hand in the machine while operating same as an employee, and suffered the loss of his hand. The petition did not allege any affirmative act of negligence on the part of defendant, but merely alleged negligence in failing to have guards, which were not described, placed upon the machine; which machine itself was in no manner described in the petition.

Defendant in due time filed his plea of privilege, claiming his privilege to be sued in Dallas county, the county of his residence, and alleged that he was not at the time of the institution of said suit, nor at the time of service of process therein, nor at the time of the filing of such plea, a resident of Coleman county, but that at all of said times he was a resident of Dallas county, and that no exception to exclusive venue to the county of one's residence existed in said cause.

Plaintiff filed his controverting answer to the plea of privilege, alleging, in reply thereto, and as grounds for venue for the cause in Coleman county, that defendant employed him to manage and handle the machinery, knowing that he was inexperienced in such matters, and also knowing that said machinery was defective and not properly constructed or protected as same should have been for the purpose of preventing injuries to a person operating same, and said machinery was not properly protected and covered so as to prevent injuries or accidents to persons operating same. And he further alleged that the defective condition of the machinery was known to defendant, and not known to plaintiff, and that plaintiff got his left hand and fingers in the machine, and they were so badly damaged that the hand had to be removed.

The controverting plea further alleged that defendant's manager, who was plaintiff's father, and defendant "well knew at the time of employing this plaintiff that he was inexperienced in operating machinery of this kind in question and both well knew at said time that said machinery was defective and same was not properly protected, as it should have been to prevent such injuries." He further alleged in said controverting plea that his venue was based upon article 1995, subd. 9, of the Revised Civil Statutes of Texas. He prayed that the plea of privilege be overruled. Upon the hearing of the plea of privilege, and the answer thereto, and the testimony thereon, the district court sustained the plea of privilege, and transferred the venue to Dallas county. Plaintiff appealed to the Court of Civil Appeals, and that court reversed the judgment of the trial court, holding that venue was in Coleman county. In due time defendant filed a motion for rehearing, which was overruled.

The defendant filed a motion that the court certify the question to the Supreme Court for decision, which was overruled; and he now seeks relief by mandamus. The mandamus is sought on the ground that the opinion of the Court of Civil Appeals is in conflict with the opinions of this court and the opinions of that court itself and many opinions of other Courts of Civil Appeals, which are cited below: Ricker et al v. Shoemaker, 81 Tex. 22, 25, 16 S.W. 645; Connor v. Saunders, 81 Tex. 633, 17 S.W. 236; Austin v. Cameron, 83 Tex. 351, 357, 18 S.W. 437; Goodrum v. Hobbs, Tex.Civ.App., 60 S.W.2d 298; Page v. Schlortt, Tex.Civ.App., 71 S.W.2d 886; Murray v. Jones, Tex.Civ. App., 56 S.W.2d 276; Douglas v. Williams, Tex.Civ.App., 83 S.W.2d 686; Crain v. King, Tex.Civ.App., 62 S.W.2d 164; Seabolt v. Goforth, Tex.Civ.App., 80 S.W.2d 1051, 1052; McCrary v. Coates, Tex.Civ. App., 38 S.W.2d 393; Perry v. Wood, Tex.Civ.App., 25 S.W.2d 650; Lawless v. Tidwell, Tex.Civ.App., 24 S.W.2d 515; Brown v. Calhoun, Tex.Civ.App., 22 S. W.2d 757, 758; Jacobson v. Berwick, Tex.Civ.App., 289 S.W. 1035; Lindop v. Baker, Tex.Civ.App., 23 S.W.2d 442; Robbins v. McFadden, Tex.Civ.App., 61 S. W.2d 1032.

A judgment of a Court of Civil Appeals reversing an order overruling a plea of privilege is final, and this court has repeatedly held that a mandamus lies to compel certification to this court of such decision, if such decision conflicts with a decision of the Supreme Court or other Court of Civil Appeals. Krueger et al. v. Hall, C.J., et al., 122 Tex. 547, 61 S. W.2d 985; Oliver v. Gallagher et al., 119 Tex. 178, 26 S.W.2d 903; Stevens v. Wilson, 120 Tex. 584, 39 S.W.2d 1088; Layton v. Hightower, 118 Tex. 166, 12 S. W.2d 110; Jones v. Hickman, 121 Tex. 405, 48 S.W.2d 982; Harris v. Wilson, 122 Tex. 323, 59 S.W.2d 106.

The dominant purpose of our venue statutes is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions. This rule was announced in the early case of Pool v. Pickett, 8 Tex. 122, and has been consistently followed since that time. Article 1995, Vernon's Ann.Civ.St., provides that: "No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases." Then follow certain exceptions, and among them is subdivision 9 of said article, which reads as follows: "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 defendant of the right of trial in the...