Ramseur v. Hudson, 9532.

• Decision Date: 14 November 1945
• Docket Number: No. 9532.,9532.
• Citation: 190 S.W.2d 576
• Parties: RAMSEUR v. HUDSON et ux.
• Court: Texas Court of Appeals

190 S.W.2d 576

RAMSEUR v. HUDSON et ux.

No. 9532.

Court of Civil Appeals of Texas. Austin.

November 14, 1945.

Appeal from District Court, Williamson County; D. W. Wilcox, Judge.

Action by Charles Cecil Hudson and wife against John A. Ramseur for damages growing out of the death of plaintiffs' minor son as result of being struck by an automobile. From an order overruling defendant's plea of privilege to be sued in the county of his residence, defendant appeals.

Affirmed.

White, Taylor & Chandler, Ike D. White, Q. C. Taylor, and H. Grady Chandler, all of Austin, for appellant.

W. K. McClain and W. H. Nunn, both of Georgetown, for appellees.

BAUGH, Justice.

Appeal is from an order of the trial court overruling appellant's plea of privilege to be sued in Hays County, the county of his residence. The suit in Williamson County was for damages growing out of the death of appellees' minor son, Cecil Wilbur Hudson, as the result of being run over by appellant's automobile while being driven by him on a highway near Round Rock in Williamson County. The venue trial was to the court without a jury. The alleged grounds of venue in Williamson County were under Sec. 9 of Art. 1995, R.C.S. That is, that of a crime, offense, or trespass committed in Williamson County, in that at the time of the collision, appellant was driving his car (1) in excess of 60 miles per hour; and (2) at such a rate of speed as to endanger the lives of others on said highway. If either of these allegations were established by competent proof, appellant was guilty of a trespass within the purview of Sec. 9 of Art. 1995. Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894, and cases therein cited; Stovall v. Whatley, Tex.Civ.App., 183 S.W.2d 672.

In response to appellant's request, the trial court filed findings of facts and conclusions of law, wherein the only venue fact found by him was that appellant was driving his automobile at the time of the accident at a rate of speed in excess of 60 miles per hour; that same was negligence, and proximately caused the death of Cecil Wilbur Hudson.

The sole contention made by appellant is that the evidence is insufficient to support this finding.

It is unnecessary to discuss at length the rules of law applicable to trials of venue issues arising under Sec. 9 of Art. 1995. In so far as venue facts are concerned, the same rules apply as if the trial were on the merits on the same issues. Compton v. Elliott, 126 Texas 232, 88 S.W. 2d 91; Saladiner v. Polanco, Tex.Civ.App., 160 S.W.2d 537. That is, the burden, as against a plea of privilege, rests upon the plaintiff to plead and to prove by a preponderance of the evidence, the venue facts alleged; and upon appeal, fact findings of the trial court will be reviewed under the same rules applicable to an appeal from a trial on the merits. Only the evidence in support of the findings and the judgment need, therefore, be considered.

On this issue the record discloses, in substance, the following: Appellant testified that immediately prior to the accident he was driving at a speed of from 50 to 55 miles per hour. As soon as he saw the boy running across the road...