Swilling v. Knight, 6302.

• Decision Date: 18 September 1947
• Docket Number: No. 6302.,6302.
• Citation: 205 S.W.2d 421
• Parties: SWILLING et al. v. KNIGHT.
• Court: Texas Court of Appeals

205 S.W.2d 421

SWILLING et al. v. KNIGHT.

No. 6302.

Court of Civil Appeals of Texas. Texarkana.

September 18, 1947.

Appeal from District Court, Panola County; S. H. Sanders, Judge.

Action by R. Knight against R. T. Swilling, Sr., and others, for damages resulting from defendants' alleged negligent act. From an order overruling pleas of privilege filed by defendants, defendants appeal.

Judgment reversed and remanded with instructions.

Thompson, Knight, Harris, Wright & Weisberg and William A. Rembert, Jr., all of Dallas, for appellants.

H. A. Leaverton, of Lockney, for appellee.

HALL, Chief Justice.

This is an appeal from an order of the District Court of Panola County overruling pleas of privilege filed by appellants R. T. Swilling, Sr., R. T. Swilling, Jr., and B. M. Boyd, comprising the partnership of R. T. Swilling and Sons, in which it is alleged that their residence is in Hill County, Texas. Appellee sought to retain venue, in Panola County under Sections 9 and 23 of Article 1995, R.S., Vernon's Ann.Civ.St. art. 1995, subds. 9, 23. Appellants' several pleas were controverted and after a hearing before the court they were overruled.

The controlling question in this case is presented by appellants' points six and seven, wherein they assert that the alleged cause of action of appellee against them arises out of a contract with the city of Carthage; that the negligent acts charged against them by appellee are with respect to work performed by them as contractors for the city of Carthage, in compliance with plans and specifications for the construction of a water and sewer system for said city; that where the evidence shows contractors performed the work of laying the water and sewer lines in accordance with the plans and specifications set out in the contract under the supervision of the city's engineer, no prima facie meritorious cause of action against appellants is established, even though the city might be liable to the property owner for special damages arising from such construction work.

The main cause of action out of which this case grows was one for damages instituted by appellee Knight against appellants. In that action it is alleged that appellee is the owner of a garage located upon the west side of and abutting Shelby Street, in the southern part of the city of Carthage. It is also alleged in the main cause of action that appellants entered upon said street and "excavated a large deep ditch for approximately one-half mile or more for the purpose of laying a sewer line and/or water line" and as stated in appellee's brief "in an improper and negligent manner, form, time and place, together with an improper and negligent filling of said ditch and finishing the street, resulting in the blocking of the egress and ingress to plaintiff's place of business and damaging plaintiff." Appellee states further in his brief:

"It is true that appellee complained that the ditch was not properly tamped and filled and the dirt on the shoulder was not removed and the surface of the shoulder was not put in its original condition but the real central point of both his allegation and his proof is that the defendant (appellants) without right or authority entered a public street on which appellee abutted and dug a deep and wide ditch and thereby blocked appellee's egress and ingress. It was appellants' acts that dug the ditch which was dug at the wrong time, in the wrong place, in the wrong manner." (Italics ours.)

We shall consider the alleged acts of negligence from this viewpoint.

The undisputed evidence reveals that on February 15, 1946, the city of Carthage, Texas, entered into a contract with appellants to lay sewer and water lines along the streets within said city. This work was under the supervision of one Chas. F. Reaney, an engineer. The testimony shows further that work was begun under the contract in the spring of 1946 and was concluded some twelve months later. Appellee owns a garage on the west side of Shelby Street in the city of Carthage. The testimony shows without dispute that in November, 1946, appellants dug a ditch along the west side of...