Texas Technological College v. Fry

• Decision Date: 20 February 1956
• Docket Number: Nos. 6573,6583,s. 6573
• Citation: 288 S.W.2d 799
• Parties: TEXAS TECHNOLOGICAL COLLEGE, Appellant, v. F. C. FRY, Appellee.
• Court: Texas Court of Appeals

Page 799

288 S.W.2d 799

TEXAS TECHNOLOGICAL COLLEGE, Appellant, v. F. C. FRY, Appellee.

Nos. 6573, 6583.

Court of Civil Appeals of Texas, Amarillo.

Feb. 20, 1956.

Rehearing Denied March 19, 1956.

John Ben Shepperd, Atty. Gen., Billy E. Lee and Horace Wimberly, Asst. Attys. Gen., R. Briggs Irvin, Lubbock, for appellant.

Crenshaw & Griffith, Lubbock, for appellee.

PITTS, Chief Justice.

This appeal involves an order overruling a plea of privilege, followed by a subsequent judgment entered on the merits in a suit for damages in the sum of $570, from each of which actions on trial an appeal has been timely perfected to this court. Appellee, F. C. Fry, filed suit against appellant, Texas Technological College, an institution in the State of Texas, for alleged damages in the sum of $646 sustained by reason of appellant's breach of a personal service contract between the parties. Appellant sought, by a plea of privilege duly filed, to have the primary case transferred to Travis County, Texas, its alleged legal domicile. Appellee timely filed his controverting affidavit. The venue issues were heard by the trial court without a jury whe appellant's plea of privilege was overruled and, appellant contends, improperly so.

This case was previously before this court on appeal as is reported in 278 S.W.2d 480. This court there held that a judgment for damages, if any, recovered by appellee in a suit such as this would necessarily be a suit against the State, for which reason such a suit could not be maintained against appellant without appellee having first obtained legislative permission or consent to bring such a suit. Such consent had not been previously obtained by appellee in that case for which reason the cause of action was ordered dismissed.

Thereafter, the 54th Texas Legislature, through House Concurrent Resolution No. 17, granted appellee permission and gave him authority 'to institute a suit against Texas Technological College, an institution of the State of Texas, in a court of competent jurisdiction in Lubbock County, Texas, in order to determine the validity of his claim. * * *' Such Resolution was adopted by the House on February 3, 1955, by the Senate on April 28, 1955, approved May 11, 1955, and filed with the Secretary of State on May 13, 1955, as shown on Page 1723 of General and Special Laws passed by the 54th State Legislature. As a result of such consent of the State first having been obtained by appellee, he again, on June 15, 1955, filed his suit in the County Court of Lubbock County, Texas, in accordance with the legislative permission obtained, which court we believe had venue of the case, for which reason appellant's point of error to the contrary is overruled. State of Texas v. Isbell, 127 Tex. 399, 94 S.W.2d 423, which case cites with approval the opinion of the court in the case of Martin v. State, Tex.Civ.App., 75 S.W.2d 950. We also cite the case of Fairchild v. National Surety Co., Tex.Civ.App., 79 S.W.2d 162.

In the appeal on the merits, the record reveals tht appellee was employed by appellant under a written contract as a swine herdsman for a term of one year beginning on September 1, 1952, and extending until August 31, 1953, at a yearly salary of $2,100, plus a house, utilities and milk, furnished appellee by appellant. Appellee had previously been so employed by appellant under a yearly written contract since 1949, and had so worked as a swine herdsman at Texas Technological College in Lubbock County, Texas. By a letter mailed and duly received, appellant without good cause terminated appellee's employment as of June 30, 1953, two months before the expiration date of the contract of employment, which resulted in the filing of this suit by appellee seeking damages in the sum of $350 because of unpaid salary for two months, $90 per month for house rent and utilities for two months, making a total of $180, $20 per month for two months for milk to be furnished him by appellant, making a total of $40, and $76 for expenses incurred by appellee in moving his family to Campbell, Hunt County, Texas, making a grand total of $646 appellee sought in damages. Appellant joined issues with appellee and likewise sought an off-set, in case of judgment against it, for any sums of money appellee received as a remuneration for employment otherwise during the months of July and August, 1953, the same being the two remaining months of his contract after its termination.

The case on its merits was tried to the court without a jury on August 9, 1955, the same day the venue issues had been heard, as a result of which appellee was awarded judgment for the sum of $570, the same being allowed for his two months salary, house rent, utilities and milk claimed, without allowing any off-set to appellant for remunerations received by appellee for his employment during July and August for 1953. Appellee's claim of $76 for moving his family to Campbell, Texas, was not allowed by the trial court,...