Rogers v. Fort Worth Poultry & Egg Co.

• Decision Date: 24 November 1944
• Docket Number: No. 14658.,14658.
• Parties: ROGERS v. FORT WORTH POULTRY & EGG CO.
• Court: Texas Court of Appeals

Page 165

185 S.W.2d 165

ROGERS v. FORT WORTH POULTRY & EGG CO.

No. 14658.

Court of Civil Appeals of Texas. Fort Worth.

November 24, 1944.

Rehearing Denied February 2, 1945.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Action by T. G. Rogers against Fort Worth Poultry & Egg Company and Bowen Motor Coaches, a corporation, for damages allegedly sustained when plaintiff's store building was struck by a bus of the last named defendant which allegedly was struck by a truck driven by an agent of the other defendant. Bowen Motor Coaches filed a cross-action over against the Fort Worth Poultry & Egg Company. The Fort Worth Poultry & Egg Company filed its plea of privilege as against plaintiff's petition, and a separate plea of privilege in response to the cross-action. From a judgment sustaining the plea of privilege as against his petition, plaintiff appeals.

Judgment affirmed.

M. W. Burch, of Decatur, for appellant.

Todd, Crowley & Gambill, of Fort Worth, for appellee.

SPEER, Justice.

This appeal involves venue under the plea of privilege. T. G. Rogers sued Fort Worth Poultry & Egg Company, a corporation, and Bowen Motor Coaches, a corporation, in the District Court of Wise County, for damages alleged to have been sustained when his store building was struck by a coach or bus of the last named defendant.

It is alleged that a truck driven by an agent of the Fort Worth Poultry & Egg Company struck the bus of the other defendant and caused it to run into the front of the store building. Many instances of negligence are ascribed to both defendants jointly and severally.

Bowen Motor Coaches answered and filed a cross action over against the Fort Worth Poultry & Egg Company. The last defendant filed its plea of privilege as against plaintiff's petition; it filed a separate plea of privilege in response to Bowen Motor Coaches' cross action; the last mentioned plea has not as yet been heard by the trial court. The plea of privilege as against plaintiff's petition has been timely heard and judgment entered sustaining the plea, from which judgment plaintiff, T. G. Rogers, has appealed.

Under three points appellant (plaintiff below) assigns error and contends the court should have overruled the plea of privilege under each and all of exceptions 14, 23, and 29a to article 1995, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 1995, subds. 14, 23, 29a.

We have concluded that no reversible error is shown; our reasons for having reached this decision will presently be demonstrated.

In a hearing on the plea of privilege only the "venue facts" are to be determined. Farmers' Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. Trial court will look to the pleadings in such cases and determine therefrom the nature of the action. The plea of privilege and controverting answer constitute the pleadings. Bates v. Stinnett, Tex.Civ.App., 170 S.W.2d 644; Cogdell et al. v. Martin et al., Tex.Civ.App., 176 S.W.2d 982; 43 Tex.Jur. 846, § 110.

Exception 14 to Article 1995, R.C.S., in effect provides that suits to recover damages to land must be brought in the county where the land or a part thereof is situated.

The petition in this case discloses that damages are sought for injuries to a rock and brick building owned by appellant. There is no allegation that he is the owner of the land upon which the building is situated. There is one allegation which appellant contends sufficiently alleges ownership of the land; it is substantially that he was unable to prevent the damages to his said building because it is permanently affixed to the real estate and is immovable, and the building was therefore forced to stand still and absorb the shock of said collision. The testimony offered showed ownership of the building in appellant, but no effort was made to prove that he owned the land upon which the building stood. We think that neither the allegation nor the proof showed appellant sought damages to land.

Appellant cites many cases holding that growing timber, crops, rock, gravel, oil, and other minerals constitute a part of the land and that actions for destruction or conversion thereof will be treated as damages to land. In each of those cases allegations of ownership of the land by plaintiffs were made. Such cases are not applicable here. He also cites Sims v. Trinity Farm Construction Co., Tex.Civ.App., 28 S.W.2d 856, 857, to support his contention that the allegations and proof were sufficient to constitute this an action for damages to land. That suit involved the burning of a house for which damages were sought. After a recitation of the pleadings, which asserted that plaintiff as guardian of a minor sued for the destruction by fire of a house located on his ward's land, the court said: "The character of this suit is therefore definitely fixed as an action for damages for the destruction of a dwelling house situated on the land of the ward. * * * `In cases such as this, in which the ownership of a house, and the land on which it stands, is in the same person, we are of opinion that the house should be treated, as in other cases, as a part of the land, * * *.'" Testimony showed that plaintiff had sued for the burning of the house on the minor's land. No such allegations or proof are involved in the instant suit.

It is obvious that all appurtenances to land placed there by nature constitute a part of the land; likewise all growing crops and grass, while unsevered, is a part of the real estate. Houses and other improvements placed thereon by man may or may not be a part of the realty— depending upon contracts and intentions of parties thereto. Everyone knows that in many cases that have been before the courts men erect structures and even very valuable improvements on lands of another under contracts, agreements, and evident intentions that such improvements shall never be a part of the land and never become the property of the land owner. When such conditions arise the improvements do not become real property but remain personal. See Wright v. Macdonnell, 88 Tex. 140, 30 S.W. 907; Hertzberg v. Witte, 22 Tex.Civ.App. 320, 54 S.W. 921; O'Neil v. Quilter, 111 Tex. 345, 234 S.W. 528; Edwards v. Thannisch, Tex. Civ.App., 254 S.W. 523; Williamson v. Pye, Tex.Civ.App., 18 S.W.2d 707; Wilson v. Modica, Tex.Civ.App., 80 S.W.2d 411; Eckstine v. Webb Walker jewelry Co., Tex. Civ.App., 178 S.W.2d 532; writ refused, want of merit. In view of the nature of appellant's pleadings and the proof offered in support of it, the case does not fall within exception 14 to article 1995.

Exception 23 of the general venue statute relied upon by appellant provides, substantially, insofar as applicable to this case, that suit may be maintained against a corporation in any county in which the cause of action or any part thereof arose. If appellant has a cause of action against appellee, it arose in Wise County where the suit was instituted. The acts of negligence alleged to have been committed by the driver of appellee's truck were: Driving in excess of the rate of speed allowed by State law and City ordinances, defective brakes, failing to keep a proper lookout, failure to have the truck under proper control at the time and place, failure to give signals as he approached the street intersection, and failure to bring the truck to a stop at said intersection.

The evidence offered shows that immediately before the collision the bus was coming up Main Street going west and appellee's truck was going south on Trinity Street. The two streets intersect at the southeast corner of the court square. The truck was on the court square between where Trinity Street enters the square and where its south extension leaves the square; the truck was on its driver's right hand side. Two persons who witnessed the accident testified that the collision took place at this intersection; that the truck hit the bus on its right hand side and caused it to veer to its left, go across the sidewalk and strike the front of the "Empire Drug Store." One witness said the impact knocked the driver of the bus out of his seat and that immediately before the collision the driver of the truck "appeared to be looking around." That the truck was traveling 12 or 15 miles per hour. There was...