Younger Bros. v. Power, 2918.

• Decision Date: 03 April 1936
• Docket Number: No. 2918.,2918.
• Citation: 92 S.W.2d 1147
• Parties: YOUNGER BROS., Inc., v. POWER.
• Court: Texas Court of Appeals

92 S.W.2d 1147

YOUNGER BROS., Inc., v. POWER.

No. 2918.

Court of Civil Appeals of Texas. Beaumont.

April 3, 1936.

Rehearing Denied April 8, 1936.

Appeal from District Court, Jackson County; J. P. Pool, Judge.

Action by Frank Power, Jr., against Younger Bros., Inc. From an order overruling the defendant's plea of privilege, the defendant appeals.

Affirmed.

John T. Vance, of Edna, and Fulbright, Crooker & Freeman, of Houston, for appellant.

Sewall Myer and Lewis Fisher, both of Houston, for appellee.

WALKER, Chief Justice.

This appeal was filed in the Galveston Court of Civil Appeals and transferred to this court by orders of the Supreme Court.

Appellee, Frank Power, Jr., filed this suit in district court of Jackson county against appellant, Younger Brothers, Inc., a corporation, to recover damages in the sum of $26,000 for personal injuries received by him on the 11th day of August, 1934, in a collision between an automobile in which he was riding and a truck which he alleged was owned and operated by the appellant at the time of the collision. Appellant was duly served with citation, and on the 2d day of March, 1935, two days before it was required to answer, filed its plea of privilege to be served in Gregg county. Appellee did not file his controverting affidavit within the five days provided by article 2007, Rev.Civ.St.; on the 11th day of March, the next day after the expiration of the five-day period, appellant appeared in court with the request that the court enter an order of transfer, as prayed for in the plea of privilege, and tendered to the court formal orders of transfer, which had been prepared by appellant's counsel. The court refused to make the order of transfer, but, on that date, permitted appellee to file his controverting affidavit by which he claimed venue under the ninth exception to article 1995, on the ground that his suit was based upon a trespass committed in Jackson county, and also under the twenty-third exception on the ground that his cause of action arose in Jackson county. The hearing on the plea of privilege was set for the following 23d day of March. On that day the cause came on to be heard, and, after overruling appellant's motion to strike the controverting affidavit, the plea of privilege was overruled. The appeal is from that order.

Appellee showed "good cause" for not filing his controverting affidavit within the five days allowed by article 2007. Construing the five-day clause of that article, the Texas Commission of Appeals in Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.(2d) 978, 981, said: "We do not think that such provision was intended to affect the power of the court to authorize such plea to be filed after the expiration of the prescribed period, when good cause is shown."

The following testimony raised the issue of good cause. Appellant filed its plea of privilege on the 2d day of the month, but had no notation of the filing made on any docket in court, and did not advise appellee's counsel that the plea had been filed nor did it call the plea to the attention of the court until the next day after expiration of the five-day period. Within the five-day period counsel for appellant talked with counsel for appellee and the court about the trial of the case on the merits, but made no reference to its plea of privilege; within the five-day period counsel for appellee inquired of the clerk whether or not a plea of privilege had been filed, and was advised by the clerk that no such plea had been filed; counsel for appellee testified that within the five-day period he took to his office the file, or jacket, that contained all the papers in this case and carefully examined them, and that the plea of privilege was not among the papers. On authority of the case cited, this statement of the testimony supports the conclusion of good cause. See, also, Page v. Schlortt (Tex. Civ.App.) 71 S.W.(2d) 886; Pelton v. Allen Inv. Co. (Tex.Civ.App.) 78 S.W.(2d) 272.

Appellant contends that the court found affirmatively against the issue of good cause and based its order entirely and exclusively on the following statement made on the 11th day of March, permitting appellee to file his controverting affidavit: "The court having heard and duly considered all of said evidence and the aforesaid written motion of plaintiff (motion to file controverting affidavit) is of the opinion and finds that the time within which plaintiff is entitled by law herein to file his controverting affidavit to the plea of privilege of defendant on file herein has not expired." This conclusion was made by the court in its order permitting plaintiff to file his controverting affidavit. Subsequently, on the 23d day of March, the court heard appellant's motion to strike the controverting affidavit, and by formal order overruled that motion, and in connection therewith made the following statement discussing the issue of "good cause," as developed by the testimony on the 11th of March on appellee's motion to file controverting affidavit:

"The evidence is very explicit as to what Judge Sample said with reference to trying to locate those pleas of privilege. That was all the Court was concerned about, following what I conceived to be the law at that time. As you will recall, I ruled that the controverting affidavits should be filed and I permitted them to be filed on March 11, and set this hearing down on the controverting plea today as I was not familiar with the holding of the Supreme Court on the proposition. My attention was not called to it by either side, but I just thought that this appealed to this Court and if the Supreme Court had not passed on it, it was a good time for it to do so and we would make some new law on the matter, because we had it squarely before the Court. I was advised later, subsequent thereto, that the Supreme Court had ruled upon a case directly in point with this. I do not care for any other testimony, gentlemen, unless you want to complete your record. If your record is incomplete, this Court has always tried to let a lawyer have his record complete so that the higher court may pass on the question properly."

It is clear from this statement by the court that he sustained appellee's motion to file the controverting affidavit and overruled appellant's motion to strike on the conclusion that appellee had shown good cause, as defined by the Commission of Appeals in Texas-Louisiana Power Company v. Wells, supra, the case to which the court referred in his statement copied above.

Appellant also assigns error against the conclusions of the trial court overruling the plea of privilege on the hearing on its merits; the contention is made that the evidence was insufficient to raise the issue that appellant (a) owned the truck (b) or was operating the truck at the time of the collision. The following summary of the testimony refutes these contentions: It was shown that appellant was a corporation, and that the collision occurred in Jackson county. On the issue that appellant owned the truck, Miss Thelma Power testified that she went to the place of the accident soon after it happened and saw the automobile in which appellee was riding and the truck with which it collided, that both the truck and the automobile were at the place of collision, and that, printed on the side of the truck, she saw the monogram "R. Y. D.," with the number "31" printed under the monogram, and that this monogram was appellant's insignia. She testified further that a man was sitting on the side of the road near the truck, who told her that he was the driver of the truck; a few days afterwards she saw this same truck at a different place in charge of this same man. At the time of the collision the truck was loaded with freight; appellant, by its charter, was authorized "to engage in the teaming and trucking business." Appellant offered no testimony whatever. The fact that the...