Winter v. Hamilton

• Decision Date: 24 September 1948
• Docket Number: No. 2671.,2671.
• Citation: 214 S.W.2d 330
• Parties: WINTER et al. v. HAMILTON et ux.
• Court: Texas Court of Appeals

214 S.W.2d 330

WINTER et al. v. HAMILTON et ux.

No. 2671.

Court of Civil Appeals of Texas. Eastland.

September 24, 1948.

Motion for Rehearing Dismissed October 22, 1948.

Appeal from District Court, Forty-Second District, Taylor County; J. R. Black, Judge.

Suit by James E. Hamilton and wife against William Winter and others for death of plaintiffs' daughter in automobile-truck collision. From an order entered on pleas of privilege transferring case in its entirety as to all defendants, named defendant and another appeal and plaintiffs move to dismiss named defendant's appeal.

Motion to dismiss appeal overruled and order affirmed in part and reversed in part with directions.

McMahon, Springer & Smart and Smith, Eplen & Bickley, all of Abilene, for appellants.

Letcher D. King, of Abilene, and Alfred M. Scott, of Austin, for appellees.

COURTNEY GRAY, Justice.

James E. Hamilton and wife filed suit in Taylor County against Deaton and Sons of Ector County, Cecil O'Shields of Tarrant County and William Winter of Taylor County to recover damages on account of the death of their daughter, Maude H. Griffin, who died as a result of an automobile-truck accident in Mitchell County, while riding in an automobile driven by one Frank Turner.

Turner also filed suit, by the same attorney, against the same defendants, and on the identical grounds of negligence; plaintiff in both actions seeking judgment against defendants jointly and severally.

Deaton and Sons filed a plea of privilege to be sued in Ector County and Cecil O'Shields filed a similar plea to be sued in Tarrant County. Neither of said pleas of privilege were controverted and on November 29, 1947, the court entered an order in each case transferring same in its entirety as to all three defendants to Ector County, from which order defendants Winter and O'Shields appealed. Said appeals have been consolidated here, the controlling issues in the cases being the same.

The pertinent facts as pleaded by plaintiffs were substantially as follows: The accident occurred at about 9:30 o'clock p.m. on January 19, 1947, on U. S. Highway 80, about ten miles west of Colorado City in Mitchell County. Rain had been falling for some time and was still falling at the time of the accident; that prior to the collision, a tractor and van trailer owned by defendant O'Shields Produce Company and being operated by an agent, servant and employee of said company, was traveling west on said Highway, on his right hand side of said highway when he saw an Oldsmobile sedan in the ditch to his right; that said automobile was owned, controlled and occupied by defendant Winter and another man whose identity was unknown to plaintiffs; that the operator of said truck and van trailer stopped his vehicle and attached a chain or rope to said Oldsmobile sedan and pulled the same up onto the paved portion of said highway, leaving the front end of said sedan facing south and about half of same south of the center line of said highway and the rear end of same being on the north side of the center of the highway, thus blocking any traffic that might come along said highway; that the operator of said O'Shields vehicle was in the act of leaving, when a tractor and trailer belonging to defendants Deaton and Sons, operated by one of their agents, servants and employees, came along traveling east, stopping in front of said Oldsmobile sedan, the right hand wheels of said truck and trailer being so stopped upon the south dirt shoulder of said highway and the left wheels on the paved portion of the highway. Thereafter, but with no allegation as to the time that had elapsed, plaintiff Frank Turner was traveling east in his Cadillac sedan with the deceased, Maude H. Griffin as a passenger, and crashed into the rear of said Deaton and Sons' tractor and trailer, causing fatal injuries to said Maude H. Griffin, permanent injuries to plaintiff Turner and wrecking his Cadillac sedan.

Plaintiffs alleged specific acts of negligence on the part of each defendant and that the agents, servants and employees of defendant O'Shields and Deaton and Sons were acting at said time and on said occasion within the scope of their respective employments.

The specific acts of negligence so pleaded were followed by the allegation "that the negligence of each of said defendants, acting together, was the proximate cause of said injuries and death of said Maude H. Griffin, and without which, such injuries and her death would not have occurred."

In the order transferring said case in its entirety to Ector County, the court says: "The court further finds that the acts of negligence alleged in the plaintiffs' petition against all of the named defendants, were concurrent acts of negligence, and that such acts of negligence concurred and operated together in bringing about the damages suffered by the plaintiffs; that the negligence of each of the defendants, acting together, was the proximate cause of the collision between the automobile in which the deceased, Maude H. Griffin, was riding as a passenger with the defendant, Deaton and Sons Truck, with the resulting damages to the plaintiffs, and that said defendants are, jointly and severally, liable, and that the liability of each of the named defendants, cannot be severed, one from the other."

Winter and O'Shields appealed and the first question presented is a motion to dismiss Winter's appeal, but O'Shields' right to appeal is not questioned.

In said order transferring said case to Ector County, we think the learned trial court fell into error as to both defendants Winter and O'Shields. Having duly filed his plea of privilege to be sued in Tarrant County, and same not having been controverted, the court had no jurisdiction other than to grant said plea and order said case as to O'Shields transferred to Tarrant County, which was the county of his residence. Galbraith v. Bishop, Tex. Com.App., 287 S.W. 1087; Foresyth v. Pike & Kramer, Tex.Civ.App., 46 S.W. 2d 733; Lloyds America et al. v. Lloyds Southwest Insurers, Tex.Civ.App., 56 S.W. 2d 477; R.S. art. 2007, Vernon's Ann.Civ. St., and many other cases. To overcome said plea, it was not sufficient for plaintiffs in their petition to allege concurrent acts of negligence and other elements such as would constitute the same a joint tort and not severable. That was a matter to be set out in proper controverting affidavits and sustained by proof. The petition merely disclosed the nature of the cause of action, but was not proof of any venue fact. 43 Tex.Jur., Sec. 111, p. 849, and Sec. 112, p. 851. Meadows & Co. v. Turner, Tex.Civ.App., 270 S.W. 899 and cases there cited.

Plaintiff's theory of the case as set out in their pleading being that a joint tort had been committed, they could have filed their suit in Ector County where Deaton and Sons resided, in Tarrant County where O'Shields resided or in Taylor County where Winter resided. They elected to sue and did sue in Taylor County. Winter filed an answer thereby accepting jurisdiction and venue in Taylor County. The situation did not call for a plea of privilege by Winter. There is no suggestion by any party that the District Court of Taylor County did not have jurisdiction as to him. We do not understand how the sustained plea of privilege as to Deaton and Sons could legally divest Winter of his right to be sued in the county of his residence. No statutory exception to his right to be sued in Taylor County was claimed, and we think that in the absence of allegation and proof of such exception, the trial court was without authority to change the venue as to him. Jones v. Wilkes, Tex.Civ.App., 199 S.W.2d 864; Fair v. Mayfield Feed & Grain Co., Tex. Civ.App., 203 S.W.2d 801; Moore v. Tucker, Tex.Civ.App., 14 S.W.2d 70. In answer to certified questions, the Commission of Appeals in the case of Southport Petroleum Co. et al. v. Carter et al., 139 Tex. 661, 165 S.W.2d 85, 87, the court quotes from the dissenting opinion with approval as follows; (construing art. 1995, Sec. 1): "It seems to me that consideration of these matters in view of the statute which grants to a defendant the valuable right to be sued in his own county leads to but one reasonable conclusion, and that is that such right is personal. The matter of venue raised by a plea of privilege, unlike the question of jurisdiction, does not pertain to the case or cause of action but to the person. Therefore the question posed by a defendant's plea of privilege is not the general issue as to venue of all defendants but venue as to him. The right to file such plea and prosecute it to final determination, including the right to appeal from an adverse judgment, is absolute. It in no wise depends upon what a codefendant may do or fail to do with respect to urging his own privilege, nor upon any order which the court may make with respect thereto."

While the facts in said case at bar are not entirely parallel, there are expressions in the opinion which seem applicable to this case, viz: the right to be sued in the county of one's residence is personal; the matter of venue raised by a plea of privilege does not pertain to the cause of action but to the person, and a defendant's right to appeal is absolute regardless of what his codefendants may or may not do. In the instant case, the personal right of defendant Winter to be sued in his own county was adversely affected by said court order growing out of the pleas of privilege by the other defendants. He had in no way waived this personal right, nor was he guilty of any negligence or omission in the premises. Under the circumstances, we think that his right to appeal was just as absolute as that of the parties to the pleas of privilege.

In an effort to protect his rights, Winter promptly filed his exception and objection to said order in so far as it changed the venue as to him, which the court, after allowing a bill of exception, overruled. To deny Winter his right to appeal would...