Thompson v. Wynne

• Decision Date: 27 September 1928
• Docket Number: (No. 697.)
• Citation: 9 S.W.2d 745
• Parties: THOMPSON et al. v. WYNNE.
• Court: Texas Court of Appeals

9 S.W.2d 745

THOMPSON et al. v. WYNNE.

(No. 697.)

Court of Civil Appeals of Texas. Waco.

September 27, 1928.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by Mrs. Grace C. Wynne against J. A. Thompson and another, in which defendants filed a plea of privilege. From a judgment overruling the plea of privilege, defendants appeal. Reversed and remanded, with instructions.

Sleeper, Boynton & Kendall, of Waco, for appellants.

Hamilton & Kibler, of Waco, for appellee.

STANFORD, J.

This suit was filed by appellee, Mrs. Grace C. Wynne, in the district court of McLennan county, Tex., against J. A. Thompson and Howard Bland, residents of Williamson county, Tex., and whom she alleged to be residents of said Williamson county. The purpose of said suit appears to be to recover of appellants damages for their alleged alienation of her husband's affection and for inducing him to breach his marriage contract with her, and thereby depriving her of support and maintenance she was entitled to expect from her husband. Appellants filed a plea of privilege in statutory form, alleging their residence to be in Williamson county, Tex., and claiming their right to have said case transferred to the county of their residence for trial. Appellee thereupon filed a controverting affidavit, which embraced a copy of her amended original petition, and claimed the right to maintain venue of said suit in McLennan county under the provisions of article 1995, subd. 9, Revised Civil Statutes, which reads as follows:

"A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile."

On the hearing of said plea to the venue and controverting affidavit, the court overruled appellants' demurrer to the sufficiency of the controverting affidavit, and overruled appellants' plea of privilege, from which action of the court the appellants have duly appealed and present the record here for review.

Under appellants' first four propositions they contend that appellee's controverting affidavit to appellants' plea of privilege was subject to general demurrer, because the facts set up in said controverting affidavit, taken as true, do not show the commission by appellants of any crime, offense, or trespass toward appellee or in connection with her, within the meaning of subdivision 9 of article 1995 of the Revised Civil Statutes. Under appellants' remaining propositions, they contend that, on the hearing of the plea of privilege, appellee failed to produce and evidence that appellants had been guilty of a trespass on appellee, or in connection with appellee, entitling her to maintain her action against them in McLennan county. We will consider the latter contention first, for, if there was no evidence bringing this case within the provisions of the claimed exception to our venue statute, then it becomes unnecessary to consider the sufficiency of the allegations of the controverting affidavit. The rule is that the facts, and not what the plaintiff alleges the facts to be, are to be looked to in determining the question made by a plea of privilege, and the controverting affidavit. The plea and affidavit are valuable only as pleadings, and are not evidence of the facts alleged. First National Bank v. Sanford (Tex. Civ. App.) 228 S. W. 650, and cases cited.

The record discloses: That appellee and R. V. Wynne were husband and wife. That they were married in October, 1915. That at said time R. V. Wynne was about 40 years of age, and was in the employ of the Western Union Telegraph Company, making $150 per month. R. V. Wynne was employed by appellants as supervisor of the Provident office building, and began his duties as such on January 15, 1920, and was discharged by appellants on January 1, 1927; no reason being given for such discharge. R. V. Wynne testified, by deposition, as follows:

"At the time I was in the employ of appellants they resided at Taylor, Tex. They both made trips together and separately to Waco, Tex., while I was employed by them. Mr. Thompson made trips on an average of about once each month. * * * Mr. Thompson usually notified me in advance of his coming to Waco; Mr. Bland did sometimes, but not always. Mr. Thompson usually notified me to reserve his room at the Waco Hotel, and to fix everything—meaning get him a prescription for whisky and to notify the girl of the time of his coming. I do not remember that Bland ever gave me any instructions. Thompson gave his instructions usually prior to every trip. I obeyed them by securing prescription and purchasing the whisky and getting into communication with the girl he had reference to in his order. To the best of my memory I never secured any other drinks than whisky under the instructions I received, but on one occasion I went with Mr. Bland, accompanied by two women, to try and get some beer, but failed to get same. As I have already stated, Mr. Thompson instructed me to notify `the girl' of his coming, and when, and she already knew where to go. This was done on practically every trip made by Mr. Thompson to Waco. I spent some time with Thompson and Bland every time they were in town. I was usually present with both Thompson and Bland every time they were in Waco. Usually there was always one or more women present whenever I was at the hotel with either of them. We had a party at such times. I did not use intoxicants at the time I was first employed by the defendants, nor did I associate with or have immoral relations with lewd women or women of immoral character prior to the time I was first employed by them."

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