Merryman v. Zeleny, 5190.
| Decision Date | 16 September 1940 |
| Docket Number | No. 5190.,5190. |
| Citation | 143 S.W.2d 410 |
| Parties | MERRYMAN v. ZELENY. |
| Court | Texas Court of Appeals |
Appeal from Castro County Court; K. E. Turner, Judge.
Action by Frank Zeleny against Clyde Merryman, to recover damages resulting from a collision between defendant's and plaintiff's trucks. From a judgment overruling defendant's plea of privilege, he appeals.
Reversed and remanded.
Griffin & Morehead, of Plainview, for appellant.
Ray Cowsert, of Dimmitt, for appellee.
This suit was instituted in the County Court of Castro County by the plaintiff, Frank Zeleny, against the defendant, Clyde Merryman, to recover the sum of $363 damages on account of a collision of the defendant's truck with the truck and trailer of the plaintiff.
We shall designate the parties as in the trial court.
The plaintiff alleged that the collision occurred in Castro County and was occasioned by the negligence of the defendant, his servant, agent and employee who operated the truck on the left side of the highway at an excessive rate of speed and failed to keep a proper lookout.
The defendant in due time and in proper form filed his plea of privilege and sought to have the case transferred to Swisher County where he lived and maintained his residence.
The plaintiff promptly filed his controverting affidavit in which he alleges that his suit is based on a crime, offense or trespass committed in Castro County and the county court thereof has venue of the case under subdivision 9 of article 1995, Vernon's Annotated Civil Statutes.
On September 13, 1939, all parties appeared and announced ready for trial on the plea of privilege. A jury was demanded, selected and impaneled to pass upon the venue facts, the testimony introduced and at the conclusion thereof the court peremptorily instructed the jury to return a verdict in behalf of plaintiff and he rendered judgment overruling the defendant's plea of privilege, from which action of the court this appeal is prosecuted.
The defendant contends by proper assignments that the court erred in directing the jury to find a verdict against him on the venue facts and overruling his plea of privilege because he says the testimony presented fact issues which should have been determined by the jury.
The testimony is sufficient to sustain a finding by the jury that on June 19, 1939, the plaintiff owned a truck with a trailer attached which was parked in Castro County on the right of and off of Highway No. 194, which extends northwesterly, the direction the truck and trailer were going when parked by the driver of the plaintiff; that the defendant owned a truck driven by N. H. Pennington who was traveling the highway in the opposite direction, or southeasterly, on the left or wrong side of the road when he ran into and collided with the truck and trailer of plaintiff which resulted in damages thereto. Mr. Pennington testified that he was a farm laborer and had been working for defendant about five weeks and had done a little of everything about the farm and had driven a truck, a combine and a tractor for defendant, but that his driving the truck had been inconsiderable; that a few nights previous to the collision he had been directed to watch a loading rack at night belonging to the defendant at which place he slept while performing that duty and had been carried there by the defendant or under his direction theretofore but on the night of the 19th there was no one to drive the truck and he was instructed to take it and drive over to the loading rack which he did, arriving there about 9:30 P. M.; that thereafter, the time he does not give, he took the truck and drove over to Hart, a little town about five miles from the loading rack, and on his return from Hart to the loading rack he ran into a truck and trailer. His testimony indicates that he stayed at Hart but a short while and got some matches before starting on his return but does not say he went to Hart for matches. He says he smokes cigarettes and a lantern was used for light at the loading rack. There is no testimony that there were no matches at the loading rack or that he needed matches in the service of his employer or that it was necessary to drive to Hart to obtain matches. There is no testimony that the defendant transacted business at Hart or had any business at Hart or that there was any occasion for Mr. Pennington to abandon his duty at the loading rack and drive to Hart for his employer.
Under the law the parties, or either of them, are entitled to have a jury pass upon the venue facts when a plea of privilege is presented. 43 Tex.Jur. 837, para. 104.
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