Newlin v. Smith

• Citation: 142 S.W.2d 610
• Decision Date: 03 July 1940
• Docket Number: No. 3651.,3651.
• Parties: NEWLIN v. SMITH.
• Court: Court of Appeals of Texas

142 S.W.2d 610

NEWLIN v. SMITH.

No. 3651.

Court of Civil Appeals of Texas. Beaumont.

July 3, 1940.

Rehearing Denied July 24, 1940.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Action by W. B. Smith against M. O. Newlin for injuries sustained in an automobile collision. From a judgment for the plaintiff, defendant appeals.

Affirmed.

C. A. Lord, of Beaumont, and Ewell H. Muse, Jr., of Austin, for appellant.

Lamar Cecil, of Beaumont, and H. M. Kinard, of Orange, for appellee.

WALKER, Chief Justice.

M. O. Newlin, doing business as Newlin Truck Lines, is appellant; W. B. Smith is appellee. On or about the 20th day of October, 1938, in a collision in Orange county between an automobile driven by appellee's wife and one of appellant's trucks, Mrs. Smith received severe personal injuries. This suit was by appellee against appellant for the damages suffered by his wife. For cause of action he plead ten specific acts of negligence against appellant, each constituting a proximate cause of Mrs. Smith's injuries. Appellant answered by plea of privilege to be sued in Harris county and, subject to his plea of privilege, by demurrers, general denial, pleas of contributory negligence, etc. On the verdict of the jury, finding in his favor on the specific issues of negligence submitted and against appellant on the issues of contributory negligence, judgment was rendered in appellee's favor against appellant for the sum of $5,100, the damages assessed by the jury.

As the first step in the trial of this case, the lower court heard and overruled appellant's "motion for a trial on the plea of privilege separate and apart from the trial on the merits." This motion was overruled and the case was tried on its merits, with judgment as stated above.

Appellant's first point, presented simply as a naked legal right, is that the court erred in not granting him a trial on his plea "separate and apart from the trial on the merits." On the undisputed facts, venue was properly laid in Orange county under Section 9 of Article 1995: "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."

There is nothing in the record to indicate that appellant suffered the least injury by the trial of his plea of privilege, together with the case on its merits. On authority of Gilmer v. Graham, Tex.Com.App., 52 S.W.2d 263, 264, appellant's contention is overruled. In that case the court said: "It is first complained that the trial court erred in refusing to sustain plaintiff in error's motion to try the issue raised by the plea of privilege separately from the issues on the merits of the case. No showing is made that plaintiff in error suffered any injury by reason of being denied a separate hearing on his plea of privilege. As to whether a hearing will be granted on a plea of privilege separate from the trial on the merits rests within the sound discretion of the trial court. Its action in refusing such a hearing will not be revised by the appellate court, in the absence of a showing that the party asserting the plea of privilege has been injured by such ruling. Griffin v. Linn (Tex.Civ.App.) 3 S.W.2d 148; Wichita Mill & Elevator Co. v. Simpson (Tex.Civ.App.) 227 S.W. 352."

See, also, Wichita Mill & Elevator Co. v. Simpson et al., Tex.Civ.App., 227 S.W. 352; Producers' Oil Co. v. Daniels, Tex. Civ.App., 249 S.W. 308; De Mars v. Montez, Tex.Civ.App., 277 S.W. 402; Gregg v. De Shong, Tex.Civ.App., 107 S. W.2d 893. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, does not overrule or limit the holding of the Graham case on this point. The cases cited by appellant, as sustaining his contention, were decided on authority of Compton v. Elliott, on a construction of that case with which we do not agree, that, as a matter of law, appellant was entitled to a trial of his plea of privilege before the case was tried on its merits.

The jury convicted appellant of negligence, proximately causing the accident, in driving his truck at a rate of speed in excess of 25 miles per hour, in failing to drive his truck "upon his right-hand side of the highway," in failing to give Mrs. Smith "one-half of the road," in failing "to keep a proper lookout for Mrs. Smith," in driving his truck into appellee's automobile while it "was occupying its right-hand side of the highway," in failing to drive his truck "to the right immediately prior to the time of the collision." Appellant assigns error against the submission of these issues on the ground that they were not raised by the evidence, and that the jury's answers against him were against the great weight and preponderance of the evidence, and were without support in the evidence. These assignments are overruled. Appellant's truck, with its trailer, was about seven feet wide and practically occupied one-half of the road; it had a tonnage capacity of about 20,000 pounds. The evidence so overwhelmingly supports the submission of these issues, and of the jury's answers thereto, that it would serve no useful purpose to bring forward the evidence as a part of this opinion.

On authority of Missouri Pac. R. Co. v. Somers, 78 Tex. 439, 14 S.W. 779, appellant asserts that he was entitled to an instructed verdict because of a conflict on one point between the testimony given by Mrs. Smith by deposition and her testimony as given on the witness stand. This contention is overruled. If the conflict be conceded, it went only to the weight and credibility of Mrs. Smith's testimony.

We overrule the contention that appellant was entitled to an instructed verdict on the theory that Mrs. Smith was guilty of contributory negligence, as a matter of law, because, after testifying that she was blinded by the approaching headlights, she did not testify to any affirmative act done by her for her own safety. The weight of this testimony was for the jury on the issues of contributory negligence.

Appellant assigns error against the refusal of the court to submit certain requested issues on the theory of Mrs. Smith's contributory negligence. Of these issues, he says: "In other words, the trial court submitted the identical theory in so far as it would allow a recovery by the appellee, but on the request of the appellant, who had pleaded the same acts as contributory negligence, totally failed...