Poe Motor Co. v. Martin, 2567.

• Decision Date: 14 February 1947
• Docket Number: No. 2567.,2567.
• Citation: 201 S.W.2d 102
• Parties: POE MOTOR CO. et al. v. MARTIN et ux.
• Court: Texas Court of Appeals

201 S.W.2d 102

POE MOTOR CO. et al. v. MARTIN et ux.

No. 2567.

Court of Civil Appeals of Texas. Eastland.

February 14, 1947.

Rehearing Denied March 7, 1947.

Appeal from District Court, Palo Pinto County; Ernest Belcher, Judge.

Suit by E. A. Martin and wife against Poe Motor Company and others for damages alleged to have resulted from an automobile collision. From an order overruling pleas of privilege, defendants appeal.

Reversed and cause remanded.

Crowley, Gambill & Smith, of Fort Worth, for appellants.

Bouldin & Bouldin, of Mineral Wells, for appellees.

GRAY, Justice.

This is an appeal from an order of the District Court of Palo Pinto County, Texas, overruling certain pleas of privilege. The plaintiffs were E. A. Martin and wife, Mrs. Virgie Martin, and the defendants were Poe Motor Company, alleged to be a partnership composed of E. A. Poe, A. B. Poe, Sr., and A. B. Poe, Jr., as co-partners and individuals, and also Joel Clarence Minyard. All defendants, except Minyard, filed pleas of privilege. The suit was for damages alleged to have resulted from a collision of two trucks owned by the Poes and operated by defendant Minyard, with a passenger car owned by Mrs. Virgie Martin, but being driven by her son Phil Acton Martin on State Highway No. 281, about eight miles south of Mineral Wells, in Palo Pinto County, in which collision, said Phil Acton Martin was killed and said passenger car demolished.

The pleading and facts disclose that Poe Motor Company had purchased a number of trucks from the government at Fort Sill, Oklahoma, and were having them driven and towed to San Antonio, Texas, for resale. The route was over State Highway 281, which passes through Palo Pinto County, Texas, and through Mineral Wells in said county; that some of said trucks passed through Mineral Wells early on the night of September 15, 1945, and one of said trucks, which towed another, was being driven by defendant Joel Clarence Minyard, alleged to be the agent and employee of Poe Motor Company. The collision occurred some eight miles south of Mineral Wells, but the exact time was not proven. Plaintiffs alleged that the deceased, Phil Acton Martin was traveling north, said truck traveling south, and that the collision occurred well over on the east side of the center of the highway, which was alleged to be negligence on the part of Minyard, driver of the truck.

Plaintiffs pleaded a trespass by defendants and sought to maintain venue in Palo Pinto County under Exception 9, Article 1995, Revised Civil Statutes. In said pleas of privilege, defendant E. A. Poe alleged his residence to be in Bexar County, Texas; defendants A. B. Poe, Sr., and A. B. Poe, Jr., alleged their residences to be in El Paso County, Texas, and defendant Poe Motor Company alleged that venue as to it was to be determined by the residence of the individual defendants. Said pleas were all controverted. The trial was to a jury, and three issues were submitted by the court, the jury finding as follows: (1) that at the time and immediately prior to the said collision, Joel Clarence Minyard was operating the truck he was driving to the left of the center of the highway; (2) that operating said truck to the left of the center of said highway was negligence; (3) that such negligence was the proximate cause of the collision. Based upon said jury findings, together with certain stipulations and admissions under Rule 169, Texas Rules of Civil Procedure, the court overruled said pleas of privilege, from which order this appeal resulted.

Upon trial of the case, the court permitted plaintiffs' counsel to read as evidence to the jury the original petition and controverting affidavits, to which defendants strenuously objected. Plaintiffs' counsel in reply stated that the petition was offered to show the cause of action, and the controverting affidavits, which referred to and made the petition a part thereof, were in reply to the pleas of privilege. During the discussion plaintiffs' counsel said, "We read it as facts set up on this hearing"; also, "It is a part of our cause of action". When the petition had been read to the jury counsel for appellant renewed his objection and moved the court to strike the same and instruct the jury not to consider the petition for any purpose, which the court declined to do and exception was reserved. The asserted error of the trial court in permitting said pleadings and controverting affidavits, duly verified, to be admitted as evidence is the basis of appellants' first point.

That the pleadings are the best evidence of the nature of the cause of action is so well established that citation of authorities would seem superfluous. But it is equally well established that in a proceeding to determine venue, the allegations of the petition are not admissible as proof of venue facts. In other words, the pleadings and controverting affidavits are for the court, who must determine the sufficiency of said instruments, and thereby be advised as to the nature of the cause of action, after which, they form a basis for the introduction of evidence as to venue facts. Of course, under some exceptions to Art. 1995 the "nature of the cause of action" is a venue issue, and plaintiffs' pleadings are the best evidence thereof. But under exception 9, the nature of the cause of action is not a venue issue, and plaintiffs' pleadings are not admissible. See Compton v. Elliott, 126 Tex. 232, 88...