Newlin v. Smith, 7794.

• Decision Date: 19 March 1941
• Docket Number: No. 7794.,7794.
• Citation: 150 S.W.2d 233
• Parties: NEWLIN v. SMITH.
• Court: Texas Supreme Court

Page 233

150 S.W.2d 233

NEWLIN v. SMITH.

No. 7794.

Supreme Court of Texas.

March 19, 1941.

Motion for Rehearing Overruled April 30, 1941.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by W. B. Smith against M. O. Newlin for injuries sustained in an automobile collision. To review a judgment of the Court of Civil Appeals, 142 S.W.2d 610, affirming a judgment for the plaintiff, defendant brings error.

Reversed and remanded.

Ewell H. Muse, Jr., of Austin, for plaintiff in error.

Lamar Cecil, of Beaumont, and Hollis Kinard, of Orange, for defendant in error.

SHARP, Justice.

W. B. Smith filed this suit against M. O. Newlin, doing business as Newlin Truck Lines, for injuries sustained by his wife in an automobile collision. Newlin answered by plea of privilege to be sued in Harris County, and, subject to his plea of privilege, by demurrers, general denial, etc. Newlin pleaded a motion for a separate trial on his plea of privilege. The trial court overruled this motion, and the hearing on the plea of privilege was had at the same time as the trial on the merits. Based upon the findings of the jury, judgment was rendered in favor of Smith in the sum of $5,100. Appeal was made to the Court of Civil Appeals at Beaumont, and the judgment of the trial court was affirmed. 142 S.W.2d 610.

Newlin contends (1) that the trial court erred in not sustaining his motion for a trial on his plea of privilege separate from a trial on the merits of the case, and (2) that the Court of Civil Appeals erred in holding that it was within the discretion of the trial court to hear the appellant's plea of privilege at the same time and along with the trial on the merits of the case.

This case involves the construction of Articles 1995, 2007, and 2008, Revised Civil Statutes of 1925, Vernon's Ann.Civ.St. arts. 1995, 2007, 2008. Smith undertakes to hold the venue of this cause in Orange County under subdivision 9 of Article 1995, by reason of a collision which occurred in that county. Newlin resides in Harris County. Article 1995 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: "9. 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."

It clearly appears that the predominant 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 has prevailed in this State since the early case of Pool v. Pickett, 8 Tex. 122. This Court has also established the rule that, to deprive a defendant of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in the statutes, and the burden rests upon the plaintiff to allege and prove that the case comes within the exception. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; Compton v. Elliott, 126 Tex. 232, 88 S.W. 2d 91.

The Court of Civil Appeals held that the failure of the trial court to grant a separate trial of the plea of privilege and permit a trial upon the merits of the cause was not error. This holding of the Court of Civil Appeals was based principally on the authority of Gilmer v. Graham, Tex. Com.App., 52 S.W.2d 263. We think this holding is in conflict with the...