Sims v. Trinity Farm Const. Co., 922.

Decision Date08 May 1930
Docket NumberNo. 922.,922.
Citation28 S.W.2d 856
PartiesSIMS v. TRINITY FARM CONST. CO.
CourtTexas Court of Appeals

Appeal from Henderson County Court; A. B. Coker, Judge.

Action by W. W. Sims, guardian of the person and estate of Rupert Sims, a minor, against the Trinity Farm Construction Company, a partnership composed of T. H. Harbin and others. From a judgment sustaining defendant's plea of privilege, plaintiff appeals.

Reversed and remanded, with instructions.

Bishop & Holland, of Athens, and John H. Sharp, of Austin, for appellant.

Walter S. Jones, of Ennis, and Will Hancock and Farrar & Wilson, all of Waxahachie, for appellee.

GALLAGHER, C. J.

This is an appeal by W. W. Sims, in his capacity as guardian of the person and estate of Rupert Sims, a minor, from a judgment sustaining a plea of privilege to be sued herein in Ellis county, interposed by appellee, Trinity Farm Construction Company, a partnership composed of T. H. Harbin, C. H. Clark, and E. P. Harwell.

Appellant sued appellees in the county court of Henderson county, alleging that his said ward was the owner of certain real estate situated in Henderson county, Tex., and on the J. M. Alpando survey; that a five-room dwelling house, the property of his ward, was situated thereon; that appellees were engaged in building a levee and clearing and burning off the right of way therefor; that appellees negligently permitted fire to escape and burn across a tract of woodland and pasture to said residence, and that the same was consumed thereby. Appellant then alleged in detail the acts of negligence relied on, and that such negligence was the proximate cause of the damage to said property. Appellees filed plea of privilege in statutory form. Appellant's controverting affidavit contained the following allegations of fact: "This affiant states that this suit was instituted for the purpose of recovering damages alleged to have been caused by the defendant while it was engaged in the construction of levees and clearing right of way for Levee Improvement District No. 3 in Henderson county, Texas. It is alleged that the house destroyed by said fire was situated on the J. M. Alpando survey in Henderson county, Texas, the county in which this suit is brought, and that the cause of action herein sued on arose solely in Henderson county, Texas."

Appellant testified on the hearing of the issues raised by said plea and controverting affidavit as follows: "I sued the Trinity Farm Construction Company for damages caused in burning a house on my minor son's land. The house that was destroyed by fire was situated on the J. M. Alpando survey in Henderson county, Texas * * * At the time they (appellees) are alleged to have caused the damage in burning the house they were engaged in constructing levees for Henderson County Levee Improvement District No. 3 in Henderson county, Texas * * * Yes, this suit is for damages caused by the burning of a house situated on land lying wholly in Henderson county, the county in which this suit was brought, and the construction company was engaged in carrying out a levee construction contract in Henderson county, Texas. Everything about this case happened in Henderson county, Texas."

The court sustained the plea of privilege and ordered the cause transferred to Ellis county for trial.

Opinion.

Appellant contends that his petition and controverting affidavit, together with the testimony submitted thereunder, were sufficient to sustain the venue of this suit in Henderson county under subdivision 14 of article 1995 of our Revised Statutes, which provides that suits for damages to lands must be brought in the county where such lands are situated. Article 2007, Revised Statutes, makes a plea of privilege complying with its provisions prima facie proof of the defendant's right to a change of venue unless the plaintiff shall "file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." (Italics ours.) The character of appellant's cause of action must be determined from the averments of his petition. We quote from Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328, as follows: "On questions of venue the character of an action is determinable solely by the allegations contained in the petition, and is a question of law to be determined by the court, and...

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  • Gilbert v. Gilbert
    • United States
    • Texas Supreme Court
    • June 19, 1946
    ...Car Co. v. Jones, Tex.Civ.App., 29 S.W.2d 861, mandamus denied Jones v. Hickman, 121 Tex. 405, 48 S.W.2d 982; Sims v. Trinity Farm Construction Co., Tex.Civ.App., 28 S.W.2d 856; Highway Motor Freight Line v. Slaughter, Tex.Civ.App., 84 S.W.2d City of Corpus Christi v. Live Oak County, Tex.C......
  • Rogers v. Fort Worth Poultry & Egg Co.
    • United States
    • Texas Court of Appeals
    • November 24, 1944
    ...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 l......
  • Phillips v. Piazza, 6702
    • United States
    • Texas Court of Appeals
    • September 24, 1953
    ...to the land which prima facie shows that it was incurred through the acts of defendant, or by his authority, are: Sims v. Trinity Farm Construction Co., 28 S.W.2d 856; Fordyce Gravel Co. v. Springs, 79 S.W.2d 1111; Talco Asphalt & Refining Co. v. McCann, supra; Hoover v. Horton, 209 S.W.2d ......
  • Stephenville Production Credit Ass'n v. Rockwell
    • United States
    • Texas Court of Appeals
    • June 27, 1952
    ...& N. T. Ry. Co., 23 Tex.Civ.App. 706, 58 S.W. 183; Knight v. Houston & T. C. R. Co., 93 Tex. 417, 55 S.W. 558; Sims v. Trinity Farm Construction Co., Tex.Civ.App., 28 S.W.2d 856. It thus appears that the venue facts required for compliance with subdivision 14 have been proved. The nature of......
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