Wester v. Smith

• Decision Date: 10 September 1948
• Docket Number: No. 14959.,14959.
• Citation: 213 S.W.2d 550
• Parties: WESTER v. SMITH et al.
• Court: Texas Court of Appeals

213 S.W.2d 550

WESTER v. SMITH et al.

No. 14959.

Court of Civil Appeals of Texas. Fort Worth.

September 10, 1948.

Appeal from District Court, Tarrant County; Thos. J. Renfro, Judge.

Suit by Mrs. Georgia Smith and others against Barney E. Wester for injuries sustained in an automobile accident. From an order overruling defendant's plea of privilege, the defendant appeals.

Affirmed.

Cantey, Hanger, McKnight & Johnson, J. A. Gooch and W. B. Thompson, all of Fort Worth, for appellant.

James H. Knapp, of Arlington, and Samuels, Brown, Herman & Scott and Ardell M. Young, all of Fort Worth, for appellees.

McDONALD, Chief Justice.

On November 25, 1947, two automobiles collided on a highway in Tarrant County, Texas. One of the cars was occupied by Daniel K. Smith, his wife, his two minor daughters, and Mrs. Smith's parents, Mr. and Mrs. Reese. The other car was driven by Barney E. Wester, a resident of Brown County. A few minutes after this collision, and while Mr. Smith and Mr. Wester and Mr. Smith's daughter Reba were standing in the highway talking about the collision, another car, owned by Furd Halsell and driven by his servant Will Cawthorne, arrived at the scene of the accident, struck the Wester car, and caused the Wester car to strike Mr. Smith and Reba Smith. Mr. Smith and Reba were severly injured, Mr. Smith so severly that he died a few hours later. Halsell and Cawthorne are residents of Tarrant County.

As an outgrowth of the two collisions, three suits were filed in the district court in Tarrant County. Wester was named as a defendant in the three suits, and filed in each of them his plea of privilege to be sued in the county of his residence. The pleas were controverted, and by agreement of the parties were heard at the same time. The trial court entered an order overruling the plea of privilege in each of the three cases, and Wester has appealed. The appeals have been docketed separately in this court, and we shall enter a separate order in each, as was done in the trial court.

In suit No. 54141-A in the trial court, styled Mrs. Georgia Smith et al. v. Furd Halsell et al., the plaintiffs were Mrs. Smith and her four children, two of whom were adults. Mrs. Smith sued for herself and as next friend of the two minor children, Reba and Mildred. The defendants were Furd Halsell, Will Cawthorne and Barney E. Wester. Plaintiffs sued for damages in the amount of $75,000 on account of Mr. Smith's death, $50 doctor and hospital bills for treatment of Mr. Smith prior to his death, and $558 funeral bill. They also sued for $1,000 on account of damages done to the Smith automobile.

We think it clear that venue of the claim for damages done to the automobile lies in Tarrant County under subdivision 9 of Article 1995. Vernon's Ann.Civ.St. It cannot be seriously contended that the evidence fails to show a trespass committed by appellant in said county, and it is undisputed that the Smith car was damaged in the first collision.

Appellant contends that plaintiffs' pleadings and the evidence both show that Mr. Smith's death was not the proximate result of any negligent act committed by appellant. From the evidence before us it appears that Smith's death was caused by the injuries he received in the second collision. The second collision occurred several minutes after the first one, and not while Mr. Smith was still in a position of peril as a proximate result of the first collision. He had alighted from his car, and had walked to the rear of the Wester car, and was standing there talking to Wester when the second collision...