Tieuel v. Southern Pacific Transp. Co.

• Decision Date: 19 May 1983
• Docket Number: No. A14-82-430CV,A14-82-430CV
• Parties: Willie B. TIEUEL, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 771

654 S.W.2d 771

Willie B. TIEUEL, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.

No. A14-82-430CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 19, 1983.

W. Douglas Matthews and Gregg Anderson, Houston, for appellant.

W.T. Womble, Crain, Caton, James & Womble, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from an order sustaining a plea of privilege to transfer the case from Harris County, Texas to Shelby County, Texas. Willie B. Tieuel (appellant) sued Southern Pacific Transportation Company (appellee) under the Federal Employer's Liability Act, 45 U.S.C.A. § 51, (F.E.L.A.) seeking damages for two personal injuries sustained by him while working as a conductor for appellee. The first injury occurred in Caddo Parish, Louisiana in 1976; the second, in Shelby County, Texas in 1978. Appellant resided in Bethany, Caddo Parish, Louisiana at all times material to this cause.

Appellee filed a plea of privilege to have the cause transferred to Shelby County, Texas, or Caddo Parish, Louisiana under the provisions of a mandatory exception to the general venue statute. Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 25 (Vernon 1964). This exception provides in relevant parts that suits against railroad corporations for damages arising from personal injuries shall be brought either in the county where the injury occurred, or in the county in which the plaintiff resided at the time of the injury. By amendment in 1947, a provision was added providing that if the plaintiff is a nonresident of this State, then such suit shall be brought in the county in which the injury occurred, or in the county in which the defendant railroad corporation has its principal office. Appellant filed a controverting plea alleging that venue was proper in Harris County, the locale of appellee's principal office, because he was a nonresident.

For purposes of the venue hearing, the parties stipulated the following jurisdictional facts: (1) that the injuries occurred in Shelby county, Texas and Caddo Parish, Louisiana; (2) that appellant was domiciled in, and maintained a residence in Louisiana; (3) that appellee was at all material times doing business in Harris and Shelby Counties and in Caddo Parish; (4) that all necessary facts to support appellant's pleadings had been established; (5) that Southern Pacific Company is a railroad corporation with its principal Texas office in Harris County; and, (6) if the plea of privilege was sustained, the suit would be transferred to Shelby County. After a hearing, appellee's plea of privilege was sustained and the cause transferred to Shelby County.

Appellant raises two interrelated points of error. Succinctly stated, they are: (1) that appellant was a nonresident of this state and, as such, was entitled to bring his suit in either the county where the injury occurred (Shelby County), or in the county of appellee's principal place of business (Harris County); (2) that the plaintiff, rather than the defendant, has the option to choose between alternative counties in a mandatory venue exception.

Appellee joins the first issue by contending that there was sufficient evidence in the record to justify an implied finding by the trial court that appellant was a resident of Texas for venue purposes. Further, appellee points out that every reasonable intendment must be resolved in favor of the trial court's judgment where no findings of fact are filed; and that it is proper to consider only the evidence favorable to the issue and disregard all evidence or inferences to the contrary.

We summarize the evidence introduced for clarity. Appellant's deposition testimony established: (1) that appellant had resided since 1972 with his wife and three children in his declared homestead located at Route 2 Bethany, Caddo parish, Louisiana; (2) that he possessed only a Louisiana Driver's License, was registered to vote, and paid state income taxes in Louisiana; (3) that he was a regular conductor on the train to and from Shreveport to Lufkin, Texas; (5) that, as a regular conductor between these cities, he had to "lay over" twelve hours in Lufkin and eight hours in Shreveport; (6) that he owns two small lots with houses at 206 1/2 and 219 Lake Street in Lufkin, Angelina County, Texas; (7) that he has owned these houses since 1975 and 1980, respectively; (8) that he stays overnight in the house at 206 1/2 Lake Street when he lays over in Lufkin; (9) that he stays there alone and maintains a telephone by which he can be reached by the crew caller; (10) that he has never intended to be a resident of, nor to live permanently in, Texas; (11) that, when he resigns, retires, or gets another job assignment, he will cease to stay overnight in Lufkin; and (12) that he has always intended to live permanently in, and be a resident of, Louisiana.

We agree with appellee that implied findings are made to support the judgment of the trial court where no findings of fact or conclusions of law are filed, and only evidence favorable to the issue is considered. Carter v. William, Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979). The evidence, however, must be of sufficient probative force. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). Nevertheless, we need not reach that issue because a careful examination of the pleadings in this case would preclude an implied finding by the trial court that the appellant was a resident of Texas. The record reflects that the pleadings before the trial court were Defendant's First Amended Plea of Privilege and Plaintiffs Controverting Plea thereto. The parameters of the trial court's decision are limited to those pleadings. We summarize defendant's pleadings relative to the issue of residence:

"On the face of Plaintiff's Second Amended Original Petition it appears, as a matter of law, that this suit is not brought in either the parish or county where the injuries allegedly occurred, or in the parish in which Plaintiff resided at the time of the alleged injuries and accidents to-wit: Shelby county, Texas, or Caddo Parish, Louisiana, respectively."

"Subdivision 25 of Art. 1995, V. A.T.S., is mandatory and provides that this suit must be maintained against Defendant Southern Pacific Transportation Company in either Caddo Parish, Louisiana, or Shelby County, Texas. The last sentence of Subdivision 25 provides:

If the plaintiff is a nonresident of this State, then such suit shall be brought in the county in which the injury occurred, or in the county in which the defendant railroad corporation has its principal office."

"... Here Southern Pacific is specifically and properly asking that the Court transfer this case either to the parish of Plaintiff's residence or the county in Texas where the accident allegedly occurred." (Emphasis added.)

Appellee is generally bound by its pleadings. We feel that appellee's pleadings are in the nature of a judicial admission that appellant is a resident of Louisiana. No other reasonable interpretation can be inferred. There is no "parish" subdivision in Texas, and no contention is made in appellant's pleading that appellant is a resident of Angelina County...