Resendez v. Lyntegar Elec. Co-op., Inc., 8464

• Decision Date: 28 May 1974
• Docket Number: No. 8464,8464
• Citation: 511 S.W.2d 350
• Parties: Lupe RESENDEZ, Appellant, v. LYNTEGAR ELECTRIC COOPERATIVE, INC., Appellee.
• Court: Texas Court of Appeals

Page 350

511 S.W.2d 350

Lupe RESENDEZ, Appellant, v.LYNTEGAR ELECTRIC COOPERATIVE, INC., Appellee.

No. 8464.

Court of Civil Appeals of Texas Amarillo.

May 28, 1974.

Evans, Pharr, Trout & Jones, W. Hollis Webb, Jr., Lubbock, for appellant.

Tony Dirksmeyer, Dallas, for appellee.

REYNOLDS, Justice.

Presented is the question of proper venue for the trial of this wrongful death action.Lupe Resendez, the surviving widow of Enrique Resendez, deceased, filed this suit in Hockley County, seeking damages for herself and in behalf of others from Lyntegar Electric Cooperative, Inc., for its alleged negligence committed in Hockley County proximately causing the death of the deceased.Controverting defendant's plea of privilege for removal of the suit to its domiciliary County of Lynn, plaintiff asserted venue was properly laid in Hockley County under subdivision 9a of the general venue statute, Vernon'sAnn.Civ.St. art. 1995.Following the venue hearing, the court, without filing findings of fact and conclusions of law, sustained the plea of privilege and ordered the cause transferred to Lynn County.We affirm.

Implicit in the court's order is the finding that plaintiff, although having pleaded various acts of negligence on the part of defendant, did not prove by a preponderance of the evidence that defendant committed in Hockley County any of such alleged acts of negligence that was a proximate cause of the death of Enrique Resendez.Plaintiff's ten-point attach on the court's finding necessitates that the evidence be reviewed with deference to the established principles governing venue.

In enacting the general venue statute, V.A.C.S. art. 1995, the legislature determined to statutorily bestow upon the defendant the valuable right to be sued in his home county subject only to specific enumerated exceptions.These exceptions are strictly construed and must be clearly established before the defendant may be deprived of his statutory right.Kain v. Northland Insurance Company, 472 S.W.2d 304(Tex.Civ.App.--Amarillo 1971, no writ);National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021(1943).Thus, in order to defeat the valuable right bestowed, the plaintiff has the burden not only to plead, but to prove by a preponderance of the evidence that the cause comes within one of the exceptions, and all doubts must be resolved in favor of the general venue rule.Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969(1951).And, where the court sits as the trier of the facts and sustains the defendant's claim of his statutory right, as the court did here, the plaintiff, to effect a reversal, must demonstrate that the venue evidence is conclusive of plaintiff's right to maintain the suit in the county where it is filed under an exception to general venue.Andrew v. Economy Furniture Company, 471 S.W.2d 433(Tex.Civ.App.--Fort Worth 1971, no writ).

So, here, plaintiff, having failed to convince the trial court that sufficient venue facts were proved to invoke exception 9a, must now demonstrate that the venue evidence established as a matter of law that defendant was guilty of negligence in Hockley County which proximately caused the wrongful death of Enrique Resendez, McGough v . Massey-Ferguson, Inc., 384 S.W.2d 154(Tex.Civ.App.--Eastland1964, writ dism'd); otherwise, absent filed findings of fact and conclusions of law, it must be presumed that the trial court resolved all fact issues in favor of its judgment.Nelson v. Retco Manufacturing, Inc., 491 S.W.2d 492(Tex.Civ.App.--Amarillo 1973, no writ).In support of this presumption, credit is given to all evidence sustaining the court's determination of the venue facts and all conflicting and contrary evidence is disregarded.Neuhaus v. Daniels, 430 S.W.2d 906(Tex.Civ.App.--Amarillo1968, writ dism'd).

Against this background, the evidence is now considered.C. B. Joiner, Fire Chief for the City of Levelland, responding to a call, proceeded to a farm in Hockley County where he found Enrique Resendez lying in a feed field near, and with his feet or his body touching, an irrigation hydrant around which were water and mud.Attached to the hydrant at ground level or above was a two foot long elbow to which was connected a twenty foot long six inch aluminum irrigation pipe in an upright position of a 90 angle to the ground.The side of the pipe was touching an overhead uninsulated electric distribution line, which was owned and maintained by defendant on its easement, and which was designed to carry 7200 volts of electricity.Chief Joiner said the power was still on and that he could see 'fire sparking around in the feed.'Electricians arrived with hot sticks and pushed the pipe away from the electric line and laid the pipe on the ground.The death of Enrique Resendez was established.

At the time, Chief Joiner did not measure or notice, and at the venue hearing he would not estimate, the distance from the point of contact of the pipe with the line either from the ground or to the top of the twenty-two foot extension of pipe.Upon his arrival, he observed the electric distribution wires, which he said were open and in plain view, and he stated that they were readily apparent to anyone in the area.It was obvious to him that the electric distribution line was directly over the hydrant.He further testified that it was not a safe practice to swing an irrigation pipe 90 in the air or over from one side of the hydrant to the other side, since it was an easy matter to disconnect the pipe on one side of the hydrant and reconnect it on the other side.

Elmer Tarbox, the employer of Lupe Resendez, testified that some three hours after the report of death, he went to the place where Lupe Resendez told him her husband had been electrocuted.At that...