Montgomery v. Gibbens
| Decision Date | 14 December 1951 |
| Docket Number | No. 2897,2897 |
| Citation | 245 S.W.2d 311 |
| Parties | MONTGOMERY v. GIBBENS. |
| Court | Texas Court of Appeals |
McMahon, Springer, Smart & Walter, Abilene, for appellant.
Schulz & Webb, Abilene, for appellee.
This appeal is from an order overruling a plea of privilege. Reed Gibbens and his wife, Vernice Gibbens, brought suit in Stephens County against appellant, Lewie Montgomery, dba Montgomery Trucking Company, who was and is a resident of Ector County, Texas. They alleged that by reason of the negligent operation of appellant's truck on Highway No. 67 in Stephens County by an employee of appellant, acting in the course of his employment, such truck was caused to collide with and to damage appellee's car which was also being operated on said highway; that Mrs. Gibbens was injured in such collision and by reason thereof, suffered great physical pain and necessarily incurred medical expenses and doctor bills. They prayed for damages in the sum of $2,650.00.
Appellant Lewie Montgomery duly filed a plea of privilege to be sued in Ector County, the place of his residence. Reed Gibbens filed a controverting plea signed only by his attorney. The sufficiency of the affidavit to such controverting plea was challenged by special exceptions. On a hearing before the court without a jury, Montgomery's plea of privilege was overruled and from such judgment he brings this appeal.
In appellant's first point it is contended that the court erred in overruling his plea of privilege because appellee Gibbens 'failed to verify his controverting plea by a sufficient affidavit to which appellant directed special exceptions.' Appellant urges that the controverting plea shows on its face that Gibbens did not swear to the truth of the allegations therein contained, but that the affiant is one of the attorneys representing appellee; that no where in said controverting plea is there an affidavit by such attorney or any one else representing appellee, swearing to the facts alleged therein, as required by law.
It is true that Reed Gibbens did not sign or swear to the truth of the allegations contained in the controverting plea. His attorney did sign the plea and made an affidavit attached thereto which recited that he was the attorney of record for Reed Gibbens and was authorized to make the affidavit. Appellant urges that the affidavit shows on its face that the attorney did not have personal knowledge of the facts alleged because the notorial certificate recites that such affiant was authorized to make the affidavit. It is contended that inescapable inference is that information so obtained was hearsay and that an affidavit grounded upon such information is, in truth and fact an affidavit based upon information and belief and is insufficient to meet the legal requirements of a controverting affidavit.
Rule No. 14, Vernon's Texas Rules of Civil Procedure provides: 'Whenever it may be necessary or proper for any party to a civil suit or proceeding to make an affidavit, it may be made by either the party or his agent or his attorney.'
By the language of the rule, Webb, as attorney for appellee, was authorized to make the affidavit for his client. The fact that such authority was indicated in the affidavit should not impair its efficiency. The affidavit by Webb recited that 'The allegations, denials, and facts set out in the foregoing controverting plea are true and correct.' In our opinion, the verification was sufficient. There was an unqualified affirmation under oath of the facts therein set out. Doll et al. v. Mundine, 84 Tex. 315, 19 S.W. 394; Utz et al. v. Michael et al. Tex.Civ.App., 227 S.W.2d 597; Evans v. Jeffrey, Tex.Civ.App., 181 S.W.2d 709.
Appellant's second point urges that the court erred in overruling his plea of privilege because there was no evidence or, in any event, insufficient evidence, to show that appellee's alleged cause of action occurred in Stephens County. The following testimony by Mrs. Gibbens with reference to this issue appears in the record:
The effect of this testimony, in our opinion, was that the accident occurred in Stephens County. In answer to the first question above set out, Mrs. Gibbens affirmed that she drove the automobile in Stephens County on September 30, 1950. In answer to the second question she stated that she had the accident at that time. The testimony confines the locale of the accident to Stephens County.
It is contended in appellant's third point that the court erred in overruling his plea of privilege because plaintiff Vernice Gibbens did not file a controverting plea thereto. Vernice Gibbens is a married woman. Damages for personal injuries to a married woman are community property and the husband is entitled to sue therefor without the joinder of his wife. Southern Ice & Utilities Co. v. Richardson 128 Tex. 82, 95 S.W.2d 956; Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086. It follows that the husband alone is required to controvert a plea of privilege in such cases.
Appellant's sixth and seventh points complain of the action of the court in overruling objections to certain testimony given by Vernice Gibbens and appellee Reed Gibbens. This case was tried before the court without a jury and error of the court, if any, in admitting testimony is not ground for reversal of a case if there is other and competent evidence to support the judgment. It is presumed in favor of the judgment that the court did not consider incompetent evidence in the rendition thereof. Of course, in determining the sufficiency of the evidence, incompetent testimony to which proper objection was duly made is not available in support of the judgment.
Appellant urges in his fifth point that there was no evidence or in any event, insufficient evidence to establish that the driver of the truck involved in the collision was (1) employed by appellant and (2) engaged in the course of his employment for appellant at the time of the collision, and that the court, therefore, erred in overruling his plea of privilege. We are of the opinion that the evidence together with...
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