Safeco Ins. Co. v. Gipson, 8853

• Decision Date: 23 June 1981
• Docket Number: No. 8853,8853
• Citation: 619 S.W.2d 275
• Parties: SAFECO INSURANCE COMPANY, Appellant, v. Stephen GIPSON and Wife, Evelyn Gipson, Appellees.
• Court: Texas Court of Appeals

Page 275

619 S.W.2d 275

SAFECO INSURANCE COMPANY, Appellant, v. Stephen GIPSON and Wife, Evelyn Gipson, Appellees.

No. 8853.

Court of Civil Appeals of Texas, Texarkana.

June 23, 1981.

Rehearing Denied July 28, 1981.

Victor Hlavinka, Brad Poulos, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellant.

Sherman Kusin, Harkness, Friedman, Kusin & Britt, Lynn Cooksey, Texarkana, for appellees.

HUTCHINSON, Justice.

This is a venue case. Appellant, Safeco Insurance Company, appeals from the order of the trial court overruling its plea of privilege.

Appellees, Stephen and Evelyn Gipson, instituted this suit against Debra Lynn Phillips and the Four Square Gospel Church in July of 1978 seeking damages for the death of their minor child alleged to have been proximately caused by the negligence of Ms. Phillips while operating a church owned van in Miller County, Arkansas. On July 27, 1978, Ms. Phillips' oral deposition was taken by appellees' attorney with appellant's attorney being present as the attorney representing Ms. Phillips and the church. At this time Ms. Phillips testified that she was a resident of Bowie County, Texas.

Thereafter, appellees by motion secured the entry of an order for the trial court to take judicial notice of Article 66-3240, Arkansas Statutes Annotated, ¹ and dismissed the Four Square Gospel Church as a defendant and on September 10, 1979, made the appellant a party defendant in its stead. Appellant, represented by the same attorney that had been representing both Ms. Phillips and the church, then filed its plea of privilege. Appellees in their controverting plea relied upon Subdivision 4 of Article 1995, Tex.Rev.Civ.Stat.Ann.

At the hearing on the plea of privilege, all the evidence concerning the residence of Ms. Phillips and appellees' cause of action against her was presented, without objection, by the introduction of the deposition testimony of Ms. Phillips taken on July 27, 1978.

In order to maintain venue under Subdivision 4 of Article 1995 where there are resident and non-resident defendants, it is not necessary for the plaintiff to prove the cause of action against the non-resident defendant. His right to maintain venue where the suit is filed is shown by 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 non-resident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits; and by proving that the resident defendant in fact resides in the county; and by proving that the plaintiff does in fact have a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Pittsburgh Plate Glass Company v. Bragg, 383 S.W.2d 623 (Tex.Civ.App. Dallas 1964, writ dism'd). No findings of fact and conclusions of law were requested or filed. Thus, in seeking to determine whether there is evidence to support the judgment, it is proper to consider only that evidence most favorable to the judgment and to disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951).

Appellant by its first point of error asserts that since the only evidence introduced by appellees to prove the residence in Bowie County of Ms. Phillips, and the cause of action against her, was hearsay as her deposition testimony was taken on July 27, 1978, over a year before appellant was made a party to the suit. In support of this assertion, appellant cites the cases of Academy Welding v. Carnes, 535 S.W.2d 917 (Tex.Civ.App. Corpus Christi 1976, no writ), and Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App. Corpus Christi 1971, no writ). In each of these cases the plaintiff sought to use his own deposition against a defendant that was a total stranger to the case at the time the deposition was taken. In the present case, appellant was not a stranger to the lawsuit. It was the liability insurance carrier for Four Square Gospel Church and its attorney was present at the taking of the deposition of Ms. Phillips, and had the opportunity to examine her at that time. As noted in the Heldt case, supra, the purpose of the rule forbidding the admission of a deposition taken while one is not a party to the suit is to protect the unjoined party's right to cross-examine the witness. Here appellant's attorney had the opportunity to question Ms. Phillips. Too, there was a contractual relationship between appellant and the Four Square Gospel Church at the time the deposition was taken which prevented appellant from being a stranger to the suit prior to being named as a party to the suit. Such a relationship does not appear to have been present in Heldt, supra, or Academy Welding, supra. Appellant's first point of error is overruled.

Appellant next contends that there is no evidence to support a finding that Ms. Phillips was a resident of Bowie County at the time it was made a party to the suit in September of 1979, pointing out that the evidence only shows her residence as of July 27, 1978, the date her deposition was taken. In support appellant cites the case of Chesbrough v. State, 465 S.W.2d 224 (Tex.Civ.App. San Antonio 1971, no writ). There the original petition was filed in July of 1965 in Bexar County against Mrs. Pirtle, a resident of that county. Chesbrough a resident of Harris County, was brought into the suit in March of 1969, at which time, according to the allegation of the amended petition, Mrs. Pirtle was then also a resident of Harris County. On appeal it was held that the plea should have been sustained and the case against the Chesbroughs transferred to Harris County. In that case, the amended pleading did not support venue under Subdivision 4 of Article 1995. In the instant case, the pleadings, although twice amended, continued to allege...