Pittsburgh Plate Glass Co. v. Bragg
| Decision Date | 30 October 1964 |
| Docket Number | No. 16420,16420 |
| Parties | PITTSBURGH PLATE GLASS COMPANY, Appellant, v. Fred BRAGG, Appellee. |
| Court | Texas Court of Appeals |
Bailey & Williams, Dallas, for appellant.
J. Alex Blakeley and Rae Ann Fichtner, Dallas, for appellee.
Venue action. Fred Bragg, a resident of Dallas County, brought this damage suit in the District Court of Kaufman County, Texas against Pittsburgh Plate Glass Company, a corporation, a resident of Dallas County, and its employee, Q. B. Lucky, a resident of Kaufman County. Lucky entered his appearance by answer. Pittsburgh Plate Glass Company filed its plea of privilege asserting its right to be sued in Dallas County. Bragg filed a controverting plea wherein he asserted that venue was proper in Kaufman County by virtue of Subdivisions 29a and 4 of Article 1995, Vernon's Ann.Civil St. Following a non-jury hearing the trial court overruled the plea of privilege.
Appellee concedes that Subdivision 29a, Article 1995, V.A.C.S. is not applicable under the facts of this case to hold venue in Kaufman County and appellant's first point is sustained. However, appellee seeks to uphold the judgment of the trial court solely on the basis of Subdivision 4, Article 1995, V.A.C.S. Appellant, in its second and third points, contends that there is no evidence, or the evidence is insufficient, to bring the case within the exception relied upon by appellee. These points require a careful examination of the record as a whole.
Appellant admitted that Lucky was a resident of Kaufman County on May 2, 1962; that on said date he was an employee of Pittsburgh Plate Glass Company; that an accident occurred on May 2, 1962 when a truck belonging to Pittsburgh, and driven by Lucky within the course and scope of his employment for such company, collided with an automobile operated by Bragg; that at the time of said collision Lucky was on a mission for Pittsburgh. Bragg testified that on May 2, 1962 he was driving his automobile to work, traveling North on Hampton Road in Dallas, Texas; that the weather was clear and dry; that his automobile was stopped about fifty to seventy-five feet north of the intersection of Hampton Road and Singleton Boulevard when he was struck from the rear by a truck driven by Lucky. He testified that immediately after the collision the truck driver got out of his truck and told him that he (Lucky) was 'in the fault'. The force of the impact caused Bragg's automobile to go forward and strike the vehicle which had been stopped in front of Bragg. Bragg testified that the automobile in front of him had been stopped waiting to turn to the left and that was the reason his automobile had been at a standstill for approximately a minute prior to the time Lucky struck him from the rear. Bragg again reiterated that Lucky informed him immediately after the accident that the collision was his (Lucky's) fault. Bragg also testified concerning his injuries and damages. Appellant tendered no evidence or made any objection to the admissibility of any of the above evidence introduced by appellee.
It is a now familiar rule of law that in order to maintain venue under Subdivision 4, Article 1995, V.A.C.S., where there are resident and non-resident defendants, it is not encumbent upon the plaintiff to prove the cause of action against the non-resident defendant, and he establishes his right to maintain venue where laid by (a) alleging a joint cause of action against the defendants, or a cause of action against a resident defendant so intimately connected with the cause of action alleged against the...
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