Southwestern Transfer Company v. Slay

• Decision Date: 28 May 1970
• Docket Number: No. 7146,7146
• Citation: 455 S.W.2d 352
• Parties: SOUTHWESTERN TRANSFER COMPANY, Inc., et al., Appellants, v. B. H. SLAY et ux., Appellees.
• Court: Texas Court of Appeals

Page 352

455 S.W.2d 352

SOUTHWESTERN TRANSFER COMPANY, Inc., et al., Appellants, v. B. H. SLAY et ux., Appellees.

No. 7146.

Court of Civil Appeals of Texas,

Beaumont.

May 28, 1970.

Renfrow, Zeleskey, Cornelius, Rogers & Berry, Lufkin, for appellants.

Wyckoff, Russell & Dunn, Houston, for appellees.

KEITH, Justice.

The appeal is from an order overruling defendant's plea of privilege to be sued in El Paso County. Plaintiff, proceeding in a southerly direction on U.S. Highway 59, a four-lane highway in San Jacinto County, was approaching a railroad underpass. A truck proceeding northerly was also approaching the underpass. Suddenly, there was a tremendous explosion, accompanied by a loud noise and the air was filled with debris and dust. A fork lift machine being transported upon the truck had been thrown to the road behind the truck; it bounced, hitting the esplanade, bounced again and landed in plaintiff's lane. In his defensive maneuver seeking to avoid direct contact with the fork lift, plaintiff swerved to his left across the raised esplanade separating the opposing lanes of traffic, thereby sustaining injuries for which he brought suit. Plaintiff's car was struck by a piece of the flying debris from either the truck or the fork lift, although he did succeed in avoiding a collision with the main body of the fork lift itself. Upon cross-examination, plaintiff said that he saw the truck hit the structure of the underpass, but the next question and his answer thereto is probably a more accurate statement:

'Q. You didn't know what hit the over-pass, did you?

'A. Well, all I saw was a bunch of dust and debris flying through the air.'

Plaintiff had pleaded in his amended petition that Southwestern and its driver, Kent, ¹ were guilty of negligence in (1) 'allowing the truck load to come in contact with the underpass;' (2) Kent was an incompetent driver and Southwestern was guilty of negligence under the doctrine of negligent entrustment; (3) Kent was guilty of negligence as a matter of law in violating the provisions of § 3, Article 827a, Penal Code; and (4) in the alternative, gave notice of intent to rely upon the doctrine of res ipsa loquitur. The plea of privilege was in proper form and the controverting affidavit sought to maintain venue under the provisions of Subdivisions 9a, 23, and 29a, Article 1995, Vernon's Ann.Civ.St.

Through requests for admissions of fact served under Rule 169, plaintiff established that Kent was operating a truck on the date in question which was owned or leased by Southwestern, with the knowledge and consent and as the employee or agent of Southwestern in the course and scope of his employment. Through interrogatories propounded under Rule 168, plaintiff established the fact that Kent, on the occasion in question, was transporting a fork lift from Houston to Dallas. ² Defendant did not affirmatively deny its corporate status.

Trial was to the court and only the plaintiff gave evidence. The court overruled the plea of privilege without filing findings of fact and conclusions of law, so that, in considering the appeal, we honor the rule enunciated in James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959):

'On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court's judgment. (Citations omitted.)'

Plaintiff can sustain venue in San Jacinto County only under the doctrine of res ipsa loquitur, and then only under the provisions of Subdivision 23, Article 1995, which imposes a less onerous burden upon him than does Subdivision 9a. ³ There is no real controversy among the parties as to the facts developed on this hearing, their disagreement being confined to the legal consequences resulting from an application of the law thereto. Further, in order to bring our decision into acute focus, we will assume for the purpose of this opinion that plaintiff made out a case for the application of the doctrine of res ipsa loquitur, if such doctrine is applicable in a venue hearing. ⁴ For the statement of the requisites of this rule of evidence, we refer to Honea v. Coca-Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 969 (1944).

Counsel have not cited, and our research has not developed a case wherein res ipsa has been the sole basis for the maintenance of venue when challenged by an appropriate plea of privilege. There are a few cases ⁵ wherein the doctrine has been mentioned, but in each instance the court held that all of the necessary elements for the application of the rule were not established. Our problem is further complicated by the frequent use in venue cases of the phrase 'that plaintiff must prove the facts in the usual way,' e.g., Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 94 (1935).

None of the authorities which we have consulted indicates that the precise point has been passed upon by our courts. Bearing in mind the many cases emphasizing the valuable right of the defendant to be sued in the county of his domicile, we have concluded that the doctrine of res ipsa loquitur cannot form the Sole basis for an order overruling a plea of privilege where the plaintiff relies upon Subdivision 23 to maintain venue. So holding, we reverse the judgment and remand the cause.

Defendant's plea of privilege, regular in form, was more than a pleading, it was prima facie proof of defendant's right to a change of venue. Rule 86; Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222, 224 (1943). The controverting affidavit which plaintiff filed simply joined the issue on venue, but the burden remained upon him to prove by a preponderance of the evidence that the case was one within one or more of the exceptions mentioned in the general venue statute. Having chosen Subdivision 23, plaintiff labored under the burden of proving that A cause of action arose in such county, not merely a prima facie cause of action. Victoria Bank & Trust Company v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 66 (1941); Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605, 606 (1950); United Super Markets v. Thomas, 433 S.W.2d 793, 794 (Amarillo Tex.Civ.App., 1968, no writ); 1 McDonald, Texas Civil Practice (Rev. Ed.), § 4.30.2--(I), p. 518.

The doctrine of res ipsa loquitur, long recognized as 'merely a rule of evidence' (Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659, 664 (1935)), is incompatible with the venue practice developed in Texas. Judge Taylor, in Elliott, supra, has set out the essence of the rule, and we quote this leading authority in Texas:

'The authorities are not in accord as to the evidential effect of the application of the rule, due in some measure to the use of the terms 'presumption' and 'inference' loosely and indiscriminately. 45 C.J. p. 1198. It is now well settled, however, in this state that in a proper case for the application of the rule the fact of the occurrence warrants an inference of negligence, but does not compel it; that the presumption created by the happening, whether termed a presumption or an inference, is rebuttable. The effect of the application is not to shift the burden of proof to the defendant, but only the burden of going forward with the evidence. It is stated in 45 C.J. p. 1219, that the general rule as affecting burden of proof is that where plaintiff has established a presumptive or prima facie case of negligence, by virtue of the doctrine of res ipsa loquitur, it is incumbent upon defendant, if he wishes to avoid the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the injury complained of was due to negligence. ⁶

Assuming, arguendo, the applicability of the doctrine to this case upon the merits, its application on the venue hearing is far from being established. At most, the doctrine simply made out a prima facie case of negligence (Elliott, supra), which is insufficient to maintain venue in a Subdivision 23 case (Victoria Bank Case, supra). Chief Justice Dunagan of the Tyler Court had occasion recently to review the requirement of proof of a cause of action in the case of Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694, 698 (Tyler Tex.Civ.App., 1965, no writ), and his remarks upon the subject are both apt and persuasive here. Commenting upon the fact that in a Subdivision 23 case, plaintiff had the burden of establishing In fact a cause of action, Justice Dunagan said:

'It is not sufficient under this Exception (No. 23) to show merely a prima facie case or merely to introduce enough evidence to raise an issue--the plaintiff must establish by a preponderance of the evidence that he has a 'cause of action' as alleged. (Citations omitted.)'

See also Reaves v. Brooks, supra.

And, we repeat, by the use of the doctrine of res ipsa, the best the plaintiff does is to make out a prima facie case, with a consequent failure to discharge his burden to maintain venue.

But, there is an even more compelling reason for denying its applicability in a venue hearing: the shifting of the burden to the defendant of going forward with the evidence 'to explain, rebut, or otherwise overcome the presumption or inference' caused by the use of the doctrine. In a venue case, the burden always remains upon the plaintiff to overcome the statutory right of the defendant to be sued in the county of his domicile. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466, 468 (1943).

Our Supreme Court in Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951), said:

'The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an Equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.' (Emphasis supplied.)

It has long been clear in the Texas cases that...