Watkins v. Goolsby

• Decision Date: 24 June 1960
• Docket Number: No. 3541,3541
• Parties: Arthur WATKINS, Jr., et al., Appellants, v. William D. GOOLSBY et al., Appellees.
• Court: Texas Court of Appeals

Page 363

337 S.W.2d 363

Arthur WATKINS, Jr., et al., Appellants, v. William D. GOOLSBY et al., Appellees.

No. 3541.

Court of Civil Appeals of Texas, Eastland.

June 24, 1960.

Rehearing Denied July 29, 1960.

Paul Floyd, Trotter, Cramer & Childs, Baker & Branch, Houston, for appellants.

Baker, Botts, Andrews & Shepherd, Houston, for appellees.

COLLINGS, Justice.

This is an appeal from an order sustaining a plea of privilege. Arthur Watkins, Jr., and Albert L. Turner brought suit in the District Court of Harris County against William D. Goolsby and Merle Bobbit, seeking to recover personal and property damages in the sum of $32,200, alleged to have been sustained and proximately caused by negligence of the defendants in a collision between an automobile and an ambulance. The defendants filed pleas of privilege to be sued in the county of their residence. Plaintiffs duly filed a controverting affidavit seeking to retain venue in Harris County under the provisions of Article 1995, subd. 9a, Vernon's Ann.Civ.St. After hearing before the court without a jury, it was ordered that the cause be transferred to the District Court of Houston County. Plaintiffs have appealed.

Appellants contend that the action of the court in sustaining the pleas of privilege is contrary to law. They urge that there was no evidence of probative force to sustain the order and in the alternative that it was against the great weight and preponderance of the evidence.

When a plea of privilege is filed, a plaintiff seeking to retain venue in a county other than the county of a defendant's residence has the burden of establishing by a preponderance of the evidence the existence of the venue facts in compliance with the requirements of some subdivision of Article 1995, supra. In the instant case appellants sought to maintain venue in the county where suit was brought under the provisions of section 9a of the statute. The venue facts which plaintiffs had the burden to establish in order to retain venue in Harris County therefore were (1) that an act or omission of negligence occurred in the county where suit was filed; (2) that such act or omission was that of the defendant in person or that of his servant, agent or representative, acting within the scope of his employment; and (3) that such negligence was a proximate cause of plaintiff's injury.

It is undisputed that the collision between the ambulance belonging to appellant Turner and the Ford pickup owned by Merle Bobbit and operated by William D. Goolsby occurred in Harris County. It was admitted by appellees that at the time of the collision Goolsby was employed by Bobbit and was operating the Ford pickup with the consent of Bobbit and in the furtherance of Bobbit's business. The remaining venue facts which appellants had the burden to establish were that Goolsby was guilty of some act or omission of negligence and that such negligence proximately caused the accident and injuries complained of.

The evidence shows that appellant Albert Turner operated a funeral home and ambulance service at 7512 Lockwood Street in Houston, Texas. Arthur Watkins, Jr., was employed by Turner on a part time basis and his duties included driving a 1953 Ford ambulance. On July 25, 1958, Turner sent Watkins to Pete's Auto Supply to pick up some auto parts needed to repair Turner's personal automobile. The supply store was approximately 3 miles from Turner's place of business. Watkins drove the ambulance to the auto supply store, secured the auto parts and then started back to the funeral home.

While Watkins was returning to the funeral home and about thirty minutes after he had left to pick up the auto parts, Turner received a call from an establishment called the Rose Bowl. The person calling requested an ambulance and Turner then notified a central dispatcher to transmit a radio message to Watkins in the ambulance, instructing watkins that he had an emergency call and for him to return to the office. Turner did not give the address of the Rose Bowl nor did he request Watkins to telephone the office for the address. This was done, according to Turner, to insure that some other ambulance did not pick up the call and beat Watkins to the scene, thereby depriving Turner of the business. Appellants do not contend that the procedure followed would increase the speed of the ambulance service. Actually the evidence shows that the nearest and best way to the Rose Bowl from where Watkins received the message was not by way of the funeral home.

Watkins testified that after receiving the call he started north on Whipprecht Street at a speed of about 20 to 25 miles per hour; that about a block and a half before reaching the intersection of Whipprecht Street and North Loop he reduced his speed to 15 or 20 miles per hour; that when he reached the intersection in question he was traveling at between 5 and 8 miles per hour. However, a witness by the name of A. B. Chisum stated that he had seen the ambulance and heard the siren; that he was observing the ambulance 200 feet before it reached the intersection and estimated that it was at the time traveling at a speed of 45 to 50 miles per hour. There was a stop sign at the intersection of Whipprecht Street and North Loop for traffic going north on Whipprecht Street. Watkins did not observe the stop sign and stated that he did not see the Ford pickup being driven east by William D. Goolsby, to Watkins' left, on North Loop until he was right at the intersection; that the front of his ambulance was at the south edge of the intersection at the time. Watkins testified that when he first saw the Ford pickup it was about 4 or 5 car lengths from the intersection and traveling at an estimated speed of 25 to 30 miles per hour. Watkins proceeded into the intersection without stopping and momentarily directed his attention to his right to observe any cars approaching from the east. North Loop at the point of the intersection with Whipprecht is a four lane through thoroughfare. The lanes for eastbound traffic are divided from the lanes for westbound traffic by an esplanade. After looking to his right, Watkins again looked to his left and at that time saw the Ford pickup approximately one or two car lengths away. Watkins then applied his brakes in an attempt to stop and avoid a collision but was unable to do so. The automobile operated by Goolsby struck the ambulance at about the middle at a time when the front...