Moreland v. Hawley Independent School Dist., 2268.

• Decision Date: 22 May 1942
• Docket Number: No. 2268.,2268.
• Citation: 163 S.W.2d 892
• Parties: MORELAND v. HAWLEY INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

163 S.W.2d 892

MORELAND v. HAWLEY INDEPENDENT SCHOOL DIST.

No. 2268.

Court of Civil Appeals of Texas. Eastland.

May 22, 1942.

Rehearing Denied June 26, 1942.

Appeal from Jones County Court; Gilbert Smith, Judge.

Action by the Hawley Independent School District against H. J. Moreland, G. P. Harber, and Joe Edins, to recover for damage to school bus in an automobile collision. From a judgment overruling a plea of privilege of H. J. Moreland to be sued in the county of his residence, H. J. Moreland appeals.

Judgment overruling plea of privilege affirmed.

McMahon, Springer & Smart, of Abilene, for appellant.

Wiley L. Caffey, of Abilene, for appellees.

FUNDERBURK, Justice.

This is an appeal from a judgment overruling a plea of privilege of H. J. Moreland in a suit brought in Jones County by Hawley Independent School District against said H. J. Moreland, G. P. Harber and Joe Edins, all residents of Taylor County. Venue of the suit was sought to be sustained under exceptions 9 and 29a of R. S. 1925, Art. 1995, Vernon's Ann.Civ.St. art. 1995, subds. 9, 29a.

Unless venue as to defendant Joe Edins was authorized under exception 9, then exception 29a could not operate to sustain the venue as to defendant H. J. Moreland. Exception 29a operates only in combination with some other exception, with the result that if no other exception exists to support the venue as to any defendant, then exception 29a can have no application. Reed v. Walker, Tex.Civ.App., 158 S.W.2d 894; Crawford v. Sanger, Tex.Civ.App., 160 S.W.2d 115. That exception 29a operates only in connection with some other exception, see Pioneer Building & Loan Association v. Gray, 132 Tex. 509, 125 S.W.2d 284.

Two grounds upon which a reversal is sought are that (1) there was no evidence that any trespass was committed, and (2) even if there was, there was no evidence that the trespass was committed in Jones County.

In our opinion, there was evidence not insufficient to raise both of said issues. All the evidence relating to such issues consisted of the testimony of Joe Mathis, the driver of the school bus. He was not a party to the suit. The court was not bound by his estimate that the truck was going about 40 miles an hour if there was evidence to support an inference of a greater speed. The issue as to the speed of the truck would not necessarily be concluded against the plaintiff, even if there was no evidence to show that such speed was in excess of 45 miles an hour. There was evidence (and none to the contrary) that warranted the conclusion that the school bus had started across the highway at a time when the truck was about 150 yards from the intersection; that the position of the school bus was in plain view of the driver of the truck and that the latter was unable to avert the collision with the school bus before the latter had reached the middle of the highway. This would seem to warrant, if not require, an inference that the truck was moving at a high and dangerous speed. In other words, the conclusion that the truck was being driven at a negligent rate of speed, whether over 45 miles an hour or less, was not without supporting evidence.

Upon the other issue, there was evidence that the unincorporated town of Hawley and the Hawley Independent School District are in Jones County; that the place of the collision was the intersection of a street of said town with a state highway, and that, therefore, the place of the collision was in Jones County. There was evidence of other corroborating facts altogether fully warranting the conclusion, we think, that if a trespass was committed as alleged, the place of its commission was in Jones County.

Two other grounds urged for reversal of the judgment are (1) that there was no evidence that Joe Edins, driver of the truck, was the agent of H. J. Moreland, and (2) even if he was such agent, there was no evidence that in driving the truck he was acting within the scope of his authority. These points, we think, must be sustained. There was evidence that the truck was owned by H. J. Moreland; but there was no other competent evidence of any probative value upon said issues. There was no evidence that Joe Edins in driving the truck was performing any service for the owner. There was no evidence that he was an employee of Moreland. There was, therefore, of course, no evidence that if he was an agent or employee he was acting within the scope of his employment. There was no evidence to sustain the allegation in plaintiff's petition to the effect that H. J. Moreland and G. P. Harber operated under the "trade name of Dr. Pepper Bottling Company" and/or "Seven-Up Bottling Company." There was no competent evidence that the truck had any name on it; or that it was usually used in the conduct of any particular business. The absence of evidence in all these respects left no supporting basis for any presumption which when the supporting facts are uncontradicted might in lieu of evidence have served to support such issues. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S. W.2d 763.

We are not unmindful that in some jurisdictions it is held that "where a plaintiff seeks to hold the defendant liable for injuries proximately resulting from the negligent operation of a motor vehicle by another, proof of the ownership of the car by defendant makes out a prima facie case, on the theory that this fact justifies an inference or raises a presumption that the driver was the agent or servant of the owner, and that he was operating the car at the time of the accident in pursuance of the owner's business and within the scope of his employment." Blashfield's Cyclopedia of Automobile Law, vol. 2, p. 1636, § 42. That rule, so far as we have found, has had no recognition by any court of this State. Such a rule undoubtedly, it seems to us, ignores the principle that one presumption may not be supported by another presumption. If it should be granted that upon such facts a presumption that the driver was a servant of the owner would arise, the further presumption that such servant was in the course of his employment would have nothing to support it except the first mentioned presumption.

The rule to which Texas cases are cited is stated in the same authority to be that "proof of ownership by defendant of the car causing the accident, together with added proof that the negligent driver was in the general employ of the defendant, raises a presumption that the driver was acting within the scope of his employment." (Italics ours). Id., § 42, p. 1639. Trachtenberg v. Castillo, Tex.Civ.App., 257 S. W. 657; Shrader v. Roberts, Tex.Civ.App., 255 S.W. 469; Lang Floral & Nursery Co. v. Sheridan, Tex.Civ.App., 245 S.W. 467; Christensen v. Christiansen, Tex.Civ. App., 155 S.W. 995; Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464. See, also, Gordon v. Texas & Pacific Merc. & Mfg. Co., Tex.Civ.App., 190 S.W. 748; Weber v. Reagan, Tex.Civ.App., 91 S.W.2d 409; Longhorn Drilling Corp. v. Padilla, Tex.Civ.App., 138 S.W.2d 164. The necessary fact basis for such presumption was absent from the evidence in this case.

In answer to a certified question, the Supreme Court, in a case not distinguishable from this, has recently declared that "To sustain venue in this case on the ground of trespass certainly the plaintiff would have to show (1) that the act of Walker [the alleged agent] constituted a trespass; (2) that he was the agent of Brown Express, Inc., and (3) that when he committed it he was acting in the course of his employment as such agent." Brown Express, Inc., v. Arnold, Tex.Com.App., 157 S.W.2d 138, 139. Under this authority, and the state of the evidence as before recited, there is no escape from the conclusion that there was no evidence to sustain venue under exception 9 in Jones County as to H. J. Moreland.

It remains to consider whether the action of the court in overruling the plea of privilege was proper under exception 29a. This question first suggests itself: When under provision of exception 29a venue may be sustained as to a necessary party claiming his privilege to be sued in the county of his residence, how is the fact that he is a necessary party required to be proved? We have considered this question before and have expressed our views in two cases. Crawford v. Sanger, Tex.Civ.App., 160 S. W.2d 115, 119; Reed v. Walker, Tex.Civ. App., 158 S.W.2d 894, 898. Briefly restated, such view is to the effect that since, under exception 4, permitting the joinder of proper parties, the fact of whether a defendant is a proper party pertains to the nature of the suit and is, therefore, provable by the allegations of plaintiff's petition, as held in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; so, also, under exception 29a, the fact of whether a person is a necessary party pertains to the nature of the suit and is provable in the same way. In other words, whether a defendant is a necessary, as well as whether he is a proper party, is a fact determinable only from the allegations of plaintiff's pleadings.

A majority of the members of this court are of the opinion that the question of whether exception 29a is applicable and sustains the venue as to Moreland has been foreclosed by decisions of the Supreme Court in Pioneer Building & Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Pierson v. Pierson, 136 Tex. 310, 150 S.W.2d 788, 790; Commonwealth Bank & Trust Co. v Heid Bros., 122 Tex. 56, 52 S.W.2d 74; Sproles v. Copeland, Tex.Civ.App., 67 S.W. 2d 1076, 1077; and Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300, 1302. These decisions seem to require us to hold that since the plaintiff elected by the suit, as brought, to hold H. J. Moreland to a joint liability with Joe Edins that, therefore, Moreland is a necessary party to the suit. Since we have found that venue as to Joe Edins in Jones County was authorized under exception 9 it follows that venue was authorized as to Moreland under exception 29a in order...