Theobold v. Pate

• Decision Date: 30 September 1976
• Docket Number: No. 934,934
• Citation: 542 S.W.2d 460
• Parties: W. D. THEOBOLD et al., Appellants, v. Sarah H. PATE et al., Appellees.
• Court: Texas Court of Appeals

Page 460

542 S.W.2d 460

W. D. THEOBOLD et al., Appellants, v. Sarah H. PATE et al., Appellees.

No. 934.

Court of Civil Appeals of Texas Tyler.

Sept. 30, 1976.

Rehearing Denied Oct. 28, 1976.

Russell H. McMains, Fulbright & Jaworski, Houston, for appellants.

John F. DeMille, Schmidt & Matthews, Randall Hopkins, Baker & Botts, Houston, for appellees.

DUNAGAN, Chief Justice.

This is a venue case brought on appeal from an order overruling a plea of privilege in the 151st Judicial District Court of Harris County, Texas. Suit was brought on July 11, 1969, by Sarah H. Pate, individually, as community survivor of her marriage and as representative of the estate of her deceased husband, Carl H. Pate, and as next friend of her minor daughter, Jerri Lee Pate; and by Thomas Pate and Mrs. Frank Turbo, all hereinafter called 'Plaintiffs-Appellees.' The suit complained against Southern Pacific Transportation Company, Theobold Trucking Company, W. A. Theobold, individually and d/b/a Theobold Trucking Company, C. F. Lykke and Ervin O. Schwartz, all defendants. The suit is a wrongful death and survival action based on Articles 4671 et seq. and 5525, Tex.Rev.Civ.St.Ann., which arose from an accident in which a Southern Pacific train collided with a pickup truck driven by Carl H . Pate who died fourteen days after the accident. Theobold Trucking Company, W. D. Theobold, individually and d/b/a Theobold Trucking Company, and Ervin O. Schwarz (hereinafter called 'Appellants') filed their plea of privilege to be sued in Williamson County, Texas, where each allegedly resided and maintained their domicile. Plaintiffs controverted the plea and sought to maintain venue in Harris County, Texas, under the provisions of Article 1995, Subdivision 4, Tex.Rev.Civ.Stat.Ann. Following a nonjury hearing, the plea of privilege was overruled. Appellants have perfected their appeal.

Plaintiffs adopted and incorporated their original petition as part of their controverting affidavit. Plaintiffs alleged in their petition that the collision, fatal injuries, and ultimate death of Carl Pate were caused by the negligence of the Defendants acting individually by and through their employees. Plaintiffs further alleged in their controverting plea that venue as to all defendants was proper in Harris County, Texas, pursuant to Article 1995, Subdivision 4, Tex.Rev.Civ.Stat.Ann., and specified the following venue facts: (1) that there were two or more defendants in this litigation, and that one of them, Southern Pacific Transportation Company, was a resident of Harris County, Texas, for venue purposes; (2) that Southern Pacific Transportation Company had been served with process, had filed its answer, and was before the court; (3) that the appellants (non-resident defendants) were proper parties to the suit on the basis that they and Southern Pacific Transportation Company were joint tortfeasors; (4) that the claims against each, being joint, justified the joining of all defendants to avoid a multiplicity of suits and to afford plaintiffs complete relief in one trial.

The trial court filed findings of fact, three findings of which appellants assert to be in error. The three contested findings are:

'(3) The Court finds negligence as to the Defendant, Southern Pacific Transportation Company, and as to its agents, servants and employees who were acting in the course and scope of their employment at the time of the occurrence in question.

'(4) The Court finds that the negligence of the Southern Pacific Transportation Company and its agents, servants and employees acting in the course and scope of their employment for the Southern Pacific Transportation Company was a proximate cause of the occurrence in question.

'(5) The Court finds that the Plaintiffs suffered pecuniary damages through the death of Carl Pate, deceased, arising out of the occurrence in question.'

'In determining whether the trial court's findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.' Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963); Holmes v. Clow, 533 S.W.2d 99 (Tex.Civ.App., Tyler 1976, no writ history).

Appellants in their brief urge that the trial court committed error in overruling their plea of privilege, contending that:

(1) There was no evidence or, alternatively, insufficient evidence to support the court's finding that Plaintiffs had suffered pecuniary loss and thus had no cause of action under the wrongful death statute;

(2) There was no evidence or, alternatively, insufficient evidence that any of the appellees were statutory beneficiaries or representatives entitled to assert a cause of action under the wrongful death or survival statutes;

(3) There was no evidence or, alternatively, insufficient evidence that the resident defendant (Southern Pacific Transportation Company) was negligent on the occasion in question; and

(4) There was no evidence or, alternatively, insufficient evidence to support the finding that the resident defendants' acts or omissions on the occasion in question were a proximate cause of the occurrence.

Plaintiffs-appellees in their brief present counterpoints to each of the points of error presented by Appellants.

The record discloses the following undisputed facts. The train-pickup truck collision occurred on July 13, 1967, in Eagle Lake, Colorado County, Texas, at the intersection of McCarty Street and the railroad tracks of the Southern Pacific Company. The accident occurred when the pickup truck driven by Carl H. Pate, deceased, was caused to stop upon the railroad tracks. Shortly thereafter, a train owned by Southern Pacific Company and operated by its employee, C. F. Lykke, struck the pickup truck causing it to hit Pate who had fled the pickup truck when the collision became imminent.

Pate's pickup truck was force to stop on the railroad tracks when the automobile in front of him driven by Virginia Snelling stopped. There is evidence that the reason Virginia Snelling stopped was to avoid hitting Appellants' dump truck which was making a left turn at the intersection of Post Office Street and McCarty Street a short distance north of the railroad intersection.

The intersections, directions and locations of vehicles, and location of the railroad track are illustrated by a drawing, which, however, is not drawn to scale, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The dump truck was owned by Theobold Trucking Company and operated by its employee, Schwarz. The record discloses that Schwarz made a left turn off of Post Office Street to proceed south on McCarty Street, causing Virginia Snelling to come to a stop which, in turn, caused Pate to stop on the railroad track where his pickup truck stalled. Pate attempted to start his pickup truck and remained in it until just before it was hit by the Southern Pacific train.

The testimony regarding the train's speed, warning signals, degree of care of the train's engineers, and efforts to stop is disputed. A complete and concise consideration of the negligence and proximate cause evidentiary issues will be made later in this opinion.

Appellants' first four points of error state respectively that there was no evidence or, alternatively, insufficient evidence that any of the Plaintiffs were statutory beneficiaries or representatives entitled to assert a cause of action under the wrongful death or survival statutes and that any of the Plaintiffs suffered pecuniary loss as a result of the accident.

Plaintiffs in their original petition plead the status of each Plaintiff to bring suit under the wrongful death statute as beneficiary. Additionally, Sarah H. Pate pleads her status to bring suit under the survival statute as representative of the estate of the deceased. No evidence of Plaintiffs' status was produced at the trial court hearing. Appellants' points of error on this issue are well taken in this regard.

However, Appellants' point of error, in questioning the 'status' of the Plaintiffs-Appellees to bring suit, is actually...