University of Tex. v. Booker

Decision Date15 September 1955
Docket NumberNo. 6834,6834
Citation282 S.W.2d 740
CourtTexas Court of Appeals
PartiesThe UNIVERSITY OF TEXAS, Appellant, v. Mrs. C. E. BOOKER, Appellee.

John Ben Shepperd, Atty. Gen., Billy E. Lee, Asst. Atty. Gen., for appellant.

George W. Edwards, Marshall, for appellee.

FANNING, Justice.

This is an appeal from an order overruling the plea of privilege of appellant, University of Texas, to be sued in Travis County, Texas. Appellee, Mrs. C. E. Booker, a resident of Harrison County, Texas, widow of C. E. Booker, deceased, filed suit in the county court of Harrison County, Texas, against University of Texas Medical Branch, alleging its domicile to be Galveston County, Texas, and alleging that her deceased husband entered said hospital for treatment and was advised that the treatment was free, would not cost him anything, that any papers he signed at the hospital were done at a time when he had no mental capacity to contract, that he would not have signed any papers if he had been advised that he was assigning benefits under his insurance policy, etc., and that an assignment of an insurance policy by her husband to said state hospital was of no force and effect, and she prayed for judgment setting aside said assignment.

The University of Texas filed its plea of privilege to be sued in Travis County, Texas. While this plea is not in the usual full statutory form, and does not state that the legal domicile of the University of Texas was in Travis County, Texas, and that the Medical School of the University at Galveston was a branch of the University of Texas, the plea contends that venue of the suit was in Travis County, Texas, under Sec. 20 of Article 1995, V.A.C.S., and said plea also contains this statutory provision: 'No exception to exclusive venue in the county of one's residence provided by law exists in said cause.' The plea prayed that the suit be transferred to the County Court at Law of Travis County, Texas.

Plaintiff-appellee did not level any character of exception to appellant's plea of privilege but filed a brief controverting plea, the material portions (omitting formal parts) being as follows:

'Plaintiff denies and here avers to be untrue and false the following allegation contained in such plea of privilege, 'It is untrue that no exception to the exclusive venue in the county of one's residence provided by law exists in said cause.' That the plaintiff will show that the defendant obtained the assignment by fraud and misrepresentation, which is more fully shown by plaintiff's original petition which petition is adopted and the same is made a part of this controverting affidavit.

'Thereby allowing the plaintiff the right to sue under the terms and conditions provided for in exception No. _____ of Article 1995 of Vernon's Annotated Civil Statutes of Texas.'

Although appellee did not allege in her controverting plea that subdivision No. 7 of Article 1995, V.A.C.S., was applicable, it is apparent from her brief and pleadings that this is the subdivision or exception that appellee had in mind. This exception reads as follows:

'7. Fraud and defalcation.-In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has its domicile.' (Italics ours.)

Plaintiff-appellee attempts to allege fraud in her petition and controverting affidavit but wholly fails in either pleading to allege that the alleged fraud was committed in Harrison County, Texas.

No duly authenticated statement of facts has been filed in this cause. There appears in the transcript a photostatic copy of plaintiff's exhibit of the assignment in question, which instrument appellant requested in writing to be included in the transcript. The transcript also contains a photostatic copy apparently of the insurance policy in question and two letters from doctors-there is nothing in the record to show that either party requested in writing the inclusion of these matters in the transcript. There also appears in the transcript a narrative statement which purportedly recites the testimony of Mrs. Vada Daniels and appellee, Mrs. Charles E. Booker,-this instrument bears a notation from the county clerk that same was filed by plaintiff and that appellant's attorney by telephone conversation gave his permission that same be included in the transcript. Neither party has made any motion to strike any of the factual matters appearing in the transcript.

Irrespective of the irregularity of some of the factual matters in question being in the transcript in the manner as above shown, an examination of same and the entire record will reveal that the entire record is wholly devoid of any proof that the alleged fraud was committed in Harrison County, Texas. In fact, the assignment itself shows that it was executed before a Notary Public of Galveston County, Texas. If any fraud was committed it apparently was committed in Galveston County, Texas, and there is certainly neither pleading nor proof that defendant committed any fraud in Harrison County, Texas.

We quote from McCormick & Ray, Texas Law of Evidence, as follows:

'The Texas courts are required to take judicial notice of the public statutes of this state, and the purposes for which they were enacted. It is therefore unnecessary to plead such statutes or offer them in evidence or refer to them during the trial. Any reference by counsel must be considered as an effort to assist the judge in making his ruling. (Sec. 83, pp. 138-139.)

'Judicial notice will be taken of the territory over which the political department of the state claims control.' (Sec. 93, p. 153.)

This court will take judicial notice of the pertinent portions of the Constitution and statutes relative to the establishment and location of the University of Texas at Austin, Texas, and its Medical Branch at Galveston, Texas. See Sec. 10, Art. VII, Const., Vernon's Ann.St., Chap. 75, Acts 17th Leg., R.S. 1881, p. 79. Also see Givens v. Woodward, tex.Civ.App., 207 S.W.2d 234, error dismissed, w. o. j., 146 Tex. 396, 208 S.W.2d 363.

In Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 806, 86 A.L.R. 477, it is stated:

'The School of Medicine at Galveston is a school in and is a part of the University of Texas and is under the control and...

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6 cases
  • Vines v. Harry Newton, Inc.
    • United States
    • Texas Court of Appeals
    • 12 de junho de 1969
    ...160 S.W.2d 65 (Tex.1942); Fouse v. Gulf, C. & S.F. Ry., 193 S.W.2d 241 (Tex.Civ.App., Ft. Worth, 1946); University of Texas v. Booker, 282 S.W.2d 740 (Tex.Civ.App., Texarkana, 1955). The judgment of the Trial Court sustaining the plea of privilege of Harry Newton, Inc., and ordering the cas......
  • Bache Halsey Stuart Shields, Inc. v. University of Houston
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    ...(Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.) appeal dismissed, 440 U.S. 952, 99 S.Ct. 1487, 59 L.Ed.2d 765; University of Texas v. Booker, 282 S.W.2d 740 (Tex.Civ.App.-Texarkana 1955, no writ); Tex.Educ. Code Ann. §§ 65.33, 76.04, 87.003, 111.31-.32, 112.32, 112.35, In short, ......
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    ...Tex. 459, 61 S.W.2d 1022; Harris County Tax Assessor-Collector v. Reed, Tex.Civ.App., 210 S.W.2d 852, n. w. h.; University of Texas v. Booker, Tex.Civ.App., 282 S.W.2d 740, n. w. h.; City of San Antonio v. United Gas Pipe Line Co., Tex.Civ.App., 354 S.W.2d 217, n. w. h.; Rainbo Baking Compa......
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    ...of those portions of the Texas Constitution and statutes relating to the establishment and location of the University. University of Tex. v. Booker, 282 S.W.2d 740, 742 (Tex. Civ. App.—Texarkana 1955, no writ); see Splawn v. Woodard, 287 S.W. 677, 678-79 (Tex. Civ. App.—Austin 1926, no writ......
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