Wash v. Buster, 2883

• Decision Date: 12 January 1950
• Docket Number: No. 2883,2883
• Parties: WASH v. BUSTER.
• Court: Texas Court of Appeals

Page 241

226 S.W.2d 241

WASH v. BUSTER.

No. 2883.

Court of Civil Appeals of Texas, Waco.

Jan. 12, 1950.

Senterfitt, Crump & Jameson, San Saba, for appellant.

Byron L. McClellan, Gatesville, for appellee.

LESTER, Chief Justice.

C. C. Buster filed suit in the District Court of Coryell County to recover damages for personal injuries against Marshall Wash, a resident of Mills County, Texas, as the result of a collision between an automobile in which he was riding and a cow owned by the defendant. The collision occurred on the 6th day of January, 1948, on the Farm & Market Road between Gatesville and Pidcoke in said county.

The defendant filed his plea of privilege to be sued in Mills County. The plaintiff controverted the same and alleged that the District Court of Coryell County should retain venue of said cause under the provisions of Article 1995, subdivision 9, Vernon's Annotated Civil Statutes.

Plaintiff alleged in his original petition and in his controverting affidavit that the collision was the proximate result of the negligence of the defendant in permitting his cow to be running at large on said highway in an area in which the stock law was in effect, and that in so doing he had committed a trespass and had violated the penal laws of this state.

The hearing was before the court and the court overruled the plea of privilege.

Subdivision 9 of Article 1995 provides that a suit based upon a crime, offense or trespass may be brought in the county where such crime, offense, or trespass was committed. Article 1370 of the Penal Code of this state provides: 'Whoever shall knowingly permit any horses, mules, jacks, jennets, or cattle to run at large in any territory in this State where the provisions of the laws of this State have been adopted prohibiting any of such animals from running at large shall be fined not less than Five Dollars ($5) nor more than Two Hundred Dollars ($200).'

The trial being before the court without the aid of a jury and the record containing no findings of fact or conclusions of law and no request for the same, under such circumstances we must presume the court found every issuable fact pleaded by the plaintiff and tendered by the evidence in support of the court's action in overruling the plea. Gulf Coast Chemical Co. v. Hopkins, Tex.Civ.App., 145 S.W.2d 928; Houston Oil Co. v. Biskamp, Tex.Civ.App., 99 S.W.2d 1007; Miller v. State, Tex.Cr.App., 155 S.W.2d 366, 1012. The defendant offered no testimony upon the trial. The plaintiff's evidence shows that the defendant's place is some three or four miles from where the collision occurred; that an unfenced area known as Camp Hood area is situated between the defendant's place and the highway; that the defendant ran his cattle upon the Camp Hood area. Mr. Woodley, the driver of the car involved in the accident, testified that when he, his wife and the plaintiff left Gatesville it was just beginning to get a little dark and he turned on the lights of his car after getting out of town. He further testified that after leaving Gatesville he went right on and was running about forty or forty-five miles per hour when a cow suddenly came out of some brush or weeds and upon the highway just in front of his car and the collision occurred, and that as a result he was knocked unconscious and so remained about thirty minutes. Plaintiff's witness Archie Wright testified that he lived near the highway and about 300 yards from the scene of the accident;...