Whittle v. Saunders

• Decision Date: 10 November 1965
• Docket Number: No. 14444,14444
• Citation: 396 S.W.2d 155
• Parties: L. D. WHITTLE, Appellant, v. Winnie Davis SAUNDERS, Appellee.
• Court: Texas Court of Appeals

Page 155

396 S.W.2d 155

L. D. WHITTLE, Appellant, v. Winnie Davis SAUNDERS, Appellee.

No. 14444.

Court of Civil Appeals of Texas, San Antonio.

Nov. 10, 1965.

Blanks, Thigpin, Logan, Steib & Lewis, San Angelo, for appellant.

James E. Nugent, Carroll Cleo Haston, Kerrville, for appellee.

MURRAY, Chief Justice.

This is a venue case. The suit was mstituted by Mrs. Winnie Davis Saunders in Sutton County, Texas, in the 112th District Court, against Pacific Finance Corporation Roger Spencer, and L. D. Whittle, d/b/a Southwest Auto Sales, seeking to recover damages sustained by her as the result of a collision between an automobile driven by Roger Spencer and an automobile driven by herself. The collision occurred on Water Street in Sonora, Sutton County, Texas.

All of the defendant filed pleas of privilege to be sued in the county of their residences, which were overruled by the court. L. D. Whittle alone has prosecuted this appeal.

For the purpose of this appeal, we may assume that Spencer negligently drove a car belonging to L. D. Whittle against a car belonging to appellee, Winnie Davis Saunders, causing her damages, and that the collision occurred on Water Street in Sonora, Sutton County. Appellee seeks to retain venue in Sutton County as to appellant, Whittle, upon the theory that Spencer was an agent of Whittle and was acting within the course of his employment at the time he negligently collided with appellee's automobile. There is no dispute as to the fact that the automobile driven by Spencer was owned by appellant. Appellee relies upon the rebuttable presumption that the driver of an automobile is the agent of the owner and is acting in the course of his employment. Henderson Drilling Corp. v. Perez, Tex.Civ.App., 304 S.W.2d 172; Austin Road Co. v. Willman, Tex.Civ.App., 303 S.W.2d 878; Walker v. Johnston, Tex.Civ.App., 236 S.W.2d 534; Boydston v. Jones, Tex.Civ.App., 177 S.W.2d 303; H. H. Robinson Truck Lines, Inc. v. Jones, Tex.Civ.App., 139 S.W.2d 127; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Globe Laundry v. McLean, Tex.Civ.App., 19 S.W.2d 94.

Appellant contends that the presumption of agency and course of duty should not be indulged where the motor vehicle was a non-commercial vehicle and unmarked or unbranded. We do not find it necessary to decide this question, as we have determined that the presumption was rebutted and dispelled by the testimony given at the hearing by Spencer.

The presumption of agency and course of duty is a rebuttable presumption, and one that disappears when the facts are shown. In McCormick and Ray, Texas Law of Evidence, § 53, pp. 62-63, it is stated: 'Under this rule where the opponent produces sufficient evidence to justify a finding against the presumed fact the presumption vanishes and the situation is the same as it would have been had no presumption been created.' Citing Empire Gas & Fuel Co. v. Muegge (Tex.Com.App.1940) 135 Tex. 520, 143 S.W.2d 763. See also ...