Pearson v. West

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: Pearson v. West, 77 S.W. 944 (Tex. 1904)
• Decision Date: 07 January 1904
• Parties: PEARSON v. WEST.

77 S.W. 944

PEARSON v. WEST.

Supreme Court of Texas.

January 7, 1904.

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

Action by Annie M. Pearson against George West. From a judgment sustaining a plea in abatement, affirmed by the Court of Civil Appeals (75 S. W. 334), plaintiff brings error. Reversed.

M. W. Davis, for plaintiff in error. Proctors, Denman, Franklin & McGown and C. C. Clamp, for defendant in error.

BROWN, J.

On the 9th day of October, 1902, Annie M. Pearson filed this suit in the district court of the Fifty-Seventh Judicial District, Bexar county, against George West, to recover $10,000 damages for an assault charged to have been committed upon her by West in Live Oak county, Tex., on the 14th day of August, 1902. The defendant, West, pleaded in abatement of the suit that at and before the commencement of the suit and service of process he resided in Live Oak county, state of Texas, and had his domicile therein, and not in the county of Bexar and state of Texas, as alleged in plaintiff's petition; that ever since the commencement of this suit and now he has resided and had his domicile in said Live Oak county; that, if plaintiff has any cause of action against him, it did not accrue in the county of Bexar, but arose in the county of Live Oak; and the defendant claimed the privilege of being sued in the said county of Live Oak, the place of his domicile. The case was submitted upon this plea to the judge without a jury, and judgment was entered sustaining the plea and dismissing the case, which judgment was affirmed by the Court of Civil Appeals.

The honorable Court of Civil Appeals did not file conclusions of fact, but there is no conflict in the evidence upon the issue presented, and we will state the facts which are established by the undisputed evidence, as follows: In 1882 West was a citizen and resident of Lavaca county, Tex. In that year he purchased a ranch in Live Oak county, and in 1885 removed with his family to the ranch, and made it his domicile, with the intention of remaining there for the future, which intention has never been changed. For five years preceding this trial West had owned 70,000 acres of land in Live Oak county and a large herd of cattle, with other things necessary for ranch purposes. Upon his ranch he had a residence house, also a house for his foreman, houses for servants, carriage houses and barn, and all such as are necessary for such a place. This ranch, its stock and equipments, constituted all the property that West owned, and the management of it was the only business in which he engaged. The business of the ranch occupied West's time during the months of April, May, June, July, August, and September, during which time each year he and his wife resided in their residence on the ranch. About the 1st of October of each year West would lock up his residence on the ranch, leaving all of his furniture and household goods in the house, go to San Antonio, and there remain until the next April or May. During the time that West and his wife were in San Antonio in the winter, he made occasional trips to the ranch, looking after his business affairs, where he would spend a few days at a time, and return to his wife at San Antonio. He had a telephone constructed to the ranch house, by means of which he held communication with his foreman whenever he desired, and transacted his business at the ranch by telephone from San Antonio. Some time before the institution of this suit West purchased a residence in San Antonio for about $21,000. He thought it cheap, and bought it as an investment. It was a large, well-equipped and well-furnished residence at the time he purchased it, and he and his wife have occupied it from October to April or May in each year since he bought it. He had the deed to the property made to his wife, and when they went to the ranch in the spring they left the carriage driver in charge of the city residence until their return in the fall. West has never claimed to be a citizen of Bexar county, has refused to vote or sit on juries in that county. He has voted in Live Oak county since he moved there in 1885, has served on juries in that county at times. In all of the contracts which West made during the time he has claimed to be a citizen of Live Oak county, and the business men with whom he has had transactions so understood him to be. The plaintiff in error was employed by West and his wife as a cook, and has resided with them for a number of years, both in San Antonio and upon the ranch. When West and wife would leave the ranch and go to San Antonio, Annie M. Pearson accompanied them, and lived with them in San Antonio, and when they would return from San Antonio to the ranch she likewise would accompany them, and serve them at that place. She was fully aware of the fact that West owned and occupied the ranch place as well as the place in San Antonio, and all of the facts and circumstances connected with his occupancy of the different places. The transaction out of which this suit was brought occurred in Live Oak county at the time when...