author: FANNING, Justice.

text:
    J. R. MARTIN et al., Appellants, v. Coy CROW, d/b/a Coy Crow Paint and Body Shop, et al., Appellees.
    No. 7514.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1963.
    Rehearing Denied Dec. 3, 1963.

      Glass & Glass, Tyler, for appellants.
    Herbert Boyland, Kenley, Ritter & Boy-land, Longview, for appellees.
   FANNING, Justice.

Plaintiffs-appellants sued defendants-ap-pellees for damages for the death of Mrs. Della Mae Martin, personal injuries to Mary John Donald, and for other stated damages, resulting from Mrs. Martin’s automobile colliding with and striking an auto wrecker of defendant Coy Crow Paint and Body Shop. Mary John Donald was a passenger in Mrs. Martin’s car. Defendant-appellee Earl Story, Jr., was an employee of Coy Crow Paint and Body Shop and was in charge of the wrecker which was parked on a paved shoulder off the highway when the night-time collision occurred.

Trial was to a jury upon special issues. The jury did not find appellees guilty of any negligent act or omission proximately causing the collision. The only issues submitted to the jury concerning the conduct of appellees concerned the lighting equipment on the wrecker, the location of the wrecker at the time of the collision and the location of appellee Earl Story, Jr., at the time of the collision. The jury also found three acts of contributory negligence upon the part of Mrs. Martin, the driver of the Martin car, with reference to speed, failure to keep her automobile under proper control and failure to make proper application of her brakes, which acts of negligence were found to be proximate causes of the accident. The jury further found that the collision was not the result of an unavoidable accident and that the manner in which Mrs. Martin operated her automobile was the sole proximate cause of the collision. The jury further found that plaintiffs suffered no damages. The trial court rendered a take-nothing judgment against plaintiffs-appellants and they have appealed.

Appellants present 16 points on appeal. By their points 1 to 8 inclusive appellants complain of the admission in evidence of the testimony of the witnesses Dean and Hensley, State Highway Patrolmen, who testified to statements made by plaintiffs’ witnesses Rector and Carter (who with ap-pellee Story had witnessed the accident) to the effect that they, Rector and Carter, had been to Longview and Gladewater drinking, etc., and that Rector and Carter had further stated that “they themselves and Mr. Story were standing beside the Cadillac, the left side of the door, trying to open the door” at the time the accident occurred, and that the witness Hensley testified that the defendant-appellee Story had told him that “he had walked across the roadway to unlock the Cadillac so that he could tie the steering wheel in order to pick it up and there were some other parties that had driven up, and that he was talking to them when the accident occurred.” Appellants attacked this evidence as being hearsay and prejudicial, and that no predicate was laid for the impeachment of the witnesses Rector and Carter.

Appellees contend that by reason of the shortness of the time from when the accident happened to the time the words were spoken to the State Highway Patrolmen by the three eyewitnesses who had just witnessed an exciting and shockingly emotional event (from 20 to 30 minutes or not much more than 30 minutes before) that such statements were admissible under the doctrine of “res gestae”. The authorities cited by appellees in support of the view that the statements were admissible as “res gestae” are as follows: Texas Employers Ins. Ass’n v. Wade, Tex.Civ.App., 236 S.W.2d 836, (rev’d on other grounds 150 Tex. 557, 244 S.W.2d 197); Harris v. Allison, Tex.Civ.App., 11 S.W.2d 821, wr. dism.; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533; Heaton v. Globe Indemnity Co., Tex.Civ.App., 71 S.W.2d 328, wr. dism.; Stone v. Whitt, Tex.Civ.App., 259 S.W.2d 923; Pinson v. Busby, Tex.Civ.App., 304 S.W.2d 413, wr. dism.

Appellees take the further view that if such statements were held not to be “res gestae” that still appellants points 1 through 8 inclusive should be overruled because it is not shown that such testimony probably caused the rendition of an improper judgment and did not constitute reversible error under Rule 434, Texas Rules of Civil Procedure.

The collision in question occurred on a rainy night on the paved shoulder off of the highway between Gladewater and Tyler. A short time before the accident, Highway Patrolmen Dean and Hensley had stopped a Cadillac automobile headed toward Tyler, apprehended the driver, Tubby Neal, who apparently was intoxicated, carried him to jail in Tyler, and left Neal’s Cadillac parked on the paved shoulder off of the highway facing Tyler. The Patrolmen apparently delivered the car keys to Neal’s Cadillac to Story and he proceeded in the wrecker of his employer to pick up Neal’s parked car. When Story arrived 'Re saw that another vehicle was also stopped on the shoulder off of the highway directly behind Neal’s Cadillac. The witnesses Carter and Rector were standing in close proximity to these two automobiles, although there was some dispute as to their ■ exact location. Story stopped his wrecker on the paved shoulder off of the highway ■opposite the two stopped automobiles and a short time thereafter the accident occurred. Carter, Rector and Story were eyewitnesses ■to the accident. The highway was about .231/4 feet wide and Mrs. Martin’s car had :ample room on the highway to pass safely (under the evidence), however she ran into .and struck the parked wrecker, which was -off of the highway and on the paved shoulder, and under the great weight and preponderance of the evidence, the wrecker had ample lighting to warn of its presence, and the findings of the jury that there was no primary negligence on the part of the ■defendants-appellees proximately causing the collision are very strongly supported by the evidence.

From the greater weight and preponderance of the evidence it appears that the statements made to the Highway Patrolmen by Rector, Carter and Story at the scene of the accident, were made within 20 or 30 minutes, (or at least not much more than 30 minutes) after the accident occurred.

However, we deem it unnecessary to determine whether the testimony complained of was admissible as “res gestae” as we have reached the firm view that in the light of the whole record in the case that the admission of such testimony (whether res gestae or not) was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment and would not constitute reversible error under Rule 434, T.R.C.P. Especially is this true because the great weight and preponderance of the evidence strongly supports the jury’s findings that defendants-appellees were not guilty of any primary negligence proximately causing the accident in question, and that there is very little, if any, evidence of probative force which would support a contrary conclusion. Appellant’s points 1 through 8, inclusive, are deemed as not presenting reversible error under this record and such points are overruled.

We also hold that the refusal of the trial court to allow the witness Charles Rector to testify that he had no interest in the outcome of the lawsuit does not constitute error under the record in this cause. 23 Tex.Jur.2d Evidence, Sec. 408, pp. 608-9. Appellants’ 9th and 10th points are overruled.

We also hold that reversible error is not presented by the failure of the trial court to give appellants’ requested instructions and special issues with respect to the doctrine of “sudden emergency” as raised by appellants’ points 11 through 15 inclusive. The judgment of the trial court is not necessarily based on the contributory negligence of Mrs. Martin, but can be clearly based on the absence of primary negligence on the part of defendants-appellees herein proximately causing the accident in question. It is also clear that the doctrine of sudden emergency does not in itself constitute an independent ground for recovery. See Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386. If there was any error in the failure to submit an issue as to sudden emergency or if there was any error in the manner of submission of the contributory negligence issues, such error, if any, would be harmless and immaterial, in view of the jury’s failure to convict defendants-appellees of any negligence proximately causing the accident in question. Highway Insurance Underwriters v. Stephens, Tex.Civ.App., 208 S.W.2d 677, wr. ref., n. r. e.; City Transp. Co. of Dallas v. Davis, Tex.Civ.App., 257 S.W.2d 476, wr. ref., n. r. e.; Attaway v. Ft. Worth & Denver Ry. Co., Tex.Civ.App., 334 S.W.2d 845, wr. ref., n. r. e. Appellants’ points 11 through 15, inch, are overruled.

Appellants further contend that the findings of the jury that they suffered no damages are against the great weight and preponderance of the evidence. The jury findings of “no damages” are contrary to the undisputed as well as the great weight and preponderance of the evidence, however this does not call for a reversal of the judgment of the trial court because the findings of the jury that defendants-appellants were not guilty of any negligence proximately causing the accident rendered the damages issues immaterial and did not show prejudicial harm. In this connection see the following authorities: Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Martin v. City of Corsicana, Tex.Civ.App., 130 S.W.2d 405, dism. judgm. corr.; McCormick v. Southwestern Bell Telephone Co., Tex.Civ.App., 36 S.W.2d 1082, wr. ref.; Guerrero v. Wright, Tex. Civ.App., 225 S.W.2d 609, wr. ref., n. r. e. Especially is this true in this case as the great weight and preponderance of the evidence strongly ¡supports the jury’s findings that defendants7appellees were not guilty of any negligence proximately causing the accident. Appellants’ 16th point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    J. B. MARION d/b/a J. B. Marion & Company, Appellant, v. Billy SNIDER, Appellee.
    No. 7290.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1963.
    Rehearing Denied Nov. 11, 1963.

      Edward W. Napier, Lubbock, for appellant.
    Brown & Shuman, Lubbock, for appellee.
   DENTON, Chief Justice.

Appellee, Billy Snider, sued appellant J. B. Marion & Company for damages alleging the breach of a contract to purchase the 1961 cotton crop of appellee. The jury’s answers to the special issues submitted were favorable to appellee and the trial court’s judgment was accordingly rendered for ap-pellee.

Appellee alleged that on July 11, 1961, the parties hereto entered into a written contract by which appellant agreed to purchase the entire 1961 cotton crop of appellee at 29.50 cents per pound. Appellee produced 114 bales of cotton and upon his tender of such cotton appellant, through his agents, failed and refused to accept the cotton. Thereupon, appellee sold said cotton to another purchaser for 27.75 cents per pound. The trial court entered judgment for the difference between the contract price and the price received by appellee.

Appellant’s only point of error attacks the form of the special issue submitted relative to the measure of damages. The special issue complained of read:

“Do you find from a preponderance of the evidence that Billy Snider exercised ordinary care to sell such 114 bales of cotton for a fair market value ?”

The jury answered in the affirmative. It is appellant’s contention such issue is a general charge, duplicitous, and is not determinative of the issue of fair market value. As we understand it, appellant does not question the correctness of the measure of damages being sought, to-wit, the difference between the contract price and the fair market value, but attacks the form of the issue as submitted. It is appellant’s position the issue as framed submits two issues in one, and in effect is submitting the question of appellee’s exercise of ordinary care and the issue of the fair market value. It is well settled that where a buyer has wrongfully refused to accept delivery of goods, the seller has a choice of three remedies. One of these remedies is the one pursued by appellee which is to retain possession of the goods and sue for the difference between the contract price and the fair market value. Waples v. Overaker, 77 Tex. 7, 13 S.W. 527; Smith v. Ratliff, Tex.Civ.App., 157 S.W.2d 945.

Upon making the election to resell the goods, the seller thereby makes himself the agent of the buyer. White v. Matador Land & Cattle Company, 75 Tex. 465, 12 S.W. 866; Burleson & Baker v. Sugarland Industries, Tex.Com.App., 255 S.W. 165. It is then incumbent upon the seller to protect the buyer’s interest by acting as a man of ordinary prudence under similar circumstances. Texas & Louisiana Lumber Company v. Rose, Tex.Civ.App., 103 S.W. 444; Waples v. Overaker, Supra; Elizondo v. Regan, Tex.Civ.App., 37 S.W.2d 1058, (Reversed on other grounds), Tex.Com.App., 55 S.W.2d 540; 37A Tex.Jur., Sales, Section 272, page 564. The special issue as submitted properly reflected the burden the law places on appellee, and is not subject to the objections made by the appellant. We conclude the form of the issue is proper and is amply supported by the pleadings and the uncontroverted evidence.

Being of the opinion the record reflects no reversible error, the judgment of the trial court is affirmed.

Affirmed.


text:
    BURLINGTON INDUSTRIES, Appellant, v. Weaver HOLLADAY, Appellee.
    No. 7296.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 18, 1963.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Stovall & Stovall, Plainview, (formally of Floydada), for appellee.
   DENTON, Chief Justice.

This is a venue case. The appeal is from an order of the trial court overruling appellant’s plea of privilege. Appellee, Weaver Holladay, brought this suit in the District Court of King County to recover damages which he alleged to have resulted from a truck collision in that county. Appellant’s plea of privilege sought removal of the case to Grayson County, the county of its residence. Appellee filed a controverting affidavit claiming venue in King County under Subsections 9a and 23 of Article 1995, Vernon’s Ann.Tex.Civ.St. On a hearing before the court without a jury, the plea of privilege was overruled.

By two points of error appellant urges the trial court erred in overruling the plea of privilege: That appellee failed to prove his cause of action; that appellee failed to prove any negligent act of appellant was a proximate cause of appellee’s damages.

Holladay and J. D. Armstead, the truck driver for appellant company, were the only witnesses who testified in the venue hearing. The appellant offered no evidence. The testimony of the two witnesses was substantially the same. Holladay was driving his loaded truck in an easterly direction on a two lane paved highway. At a point approximately 20 miles east of Guthrie, Texas, in King County, Holla-day was passed by Armstead in appellant’s truck. After Armstead had passed Holla-day the passing truck pulled back in front of Holladay at a close distance — some 10 or 15 feet — and the speed of the Burlington truck was then decreased. Holladay testified the rear clearance lights of the Burlington truck then came on and he immediately applied his brakes. In an effort to prevent hitting the truck ahead Holladay pulled to the left, and as he did so a second truck owned by Burlington was in the process of passing him on the left. Holladay then turned back to the right and as he did so his truck struck the left rear of the truck being driven by Armstead. Arm-stead corroborated most of Holladay’s testimony with the exception he denied applying his brakes after passing Holladay, but testified he reduced his speed by removing his foot from the accelerator. He further testified he flashed on his clearance lights as a courtesy gesture to Holladay for having permitted him to pass. In other material respects the testimony of both witnesses was similar.

In order to maintain venue when a defendant has filed a plea of privilege, the plaintiff is only required to make out a prima facie case, and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence offered by the defendant, then it is proper to overrule the plea of privilege. Austin Road Co. v. Willman, (Tex.Civ.App.), 303 S.W.2d 878; Plains Transport, Inc. v. Parker, (Tex.Civ.App.), 359 S.W.2d 556, (Error Dismissed).

Appellant further contends the evidence was insufficient to prove either Arm-stead or the driver of the second truck of appellant was the agent of the appellant company. Armstead testified the trucks belonged to Burlington Industries and that he was an employee of that company on the occasion in question. This testimony, coupled with the evidence the trucks bore a printed sign “Burlington”, is sufficient in the absence of any proof to the contrary to prove the agency of Armstead. Austin Road Co. v. Willman, supra; Archie Lacy Truck Lines v. Smith, (Tex.Civ.App.), 350 S.W.2d 216.

Under the evidence presented, we are of the opinion the trial court properly held that the plaintiff below proved a cause of action under the provisions of Section 9a, Article 1995. Heldt Bros. Trucks v. McCollum, (Tex.Civ.App.), 293 S.W.2d 214; Trevino v. Thomas, (Tex.Civ.App.), 317 S.W.2d 247.

The judgment of the trial court is affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    Derwood COPELAND et ux., Appellants, v. H. D. OGLE, Appellee.
    No. 7295.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1963.
    Rehearing Denied Nov. 25, 1963.

      Morehead, Sharp & Boyd, Plainview, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   NORTHCUTT, Justice.

Elbert and Mary Hooper filed suit in the district court against H. D. Ogle, individually and as next friend for their minor son, Kenneth Bailey Hooper, for his personal injuries and damages sustained by them. Derwood Copeland and his wife filed a separate suit at the same time against H. D. Ogle for the death of their minor son, Gary Dee Copeland. Both suits arose out of a collision between an automobile driven by Kenneth Bailey Hooper and occupied by Gary Dee Copeland which ran into the rear of a tractor being operated by H. D. Ogle.

By agreement, an order was entered consolidating the two suits. The case was tried to a jury upon special issues and no objections were made to the charge of the court or as to any of the issues submitted. The jury in answer to special issues found both of the minors contribu-torily negligent and awarded no damage to any of the parties. The trial court overruled a motion for a new trial filed on behalf of the plaintiffs; but, only Mr. and Mrs. Copeland appealed from that judgment and the remaining plaintiffs will not be considered further herein. For convenience, Mr. and Mrs. Copeland will hereafter be referred to as appellants and Mr. Ogle as appellee.

This appeal is presented on two points of error. Other than the assignment of error as to the finding of the jury as to no damage, the sole question here is based upon Paragraph 5 of the motion for new trial which is as follows:

“The finding of the Jury in response to Special Issues No. 18(a), (b), (c), and (d) is not supported by the evidence because there is no evidence that the plaintiff’s decedent, Gary Dee Copeland, failed to protest to the driver concerning the speed at which the Falcon was being driven immediately prior to the collision; and because there was no evidence that plaintiff’s decedent, Gary Dee Copeland, could have made such protest of speed, if any, in time for the driver, Kenneth Bailey Hooper, in the exercise of ordinary care, to avoid the collision in question; and because there is no evidence that plaintiff’s decedent,' Gary Dee Copeland’s failure to protest the speed at which the Falcon automobile was driven was the proximate cause of the damages sustained by the said plaintiffs, Der-wood Copeland and wife.”
Rule 374 provides that:
“ ‘A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.’ ”

Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. It has often been held that a motion for new trial in a jury case constitutes the assignment of error to be reviewed by the appellate courts and that an assignment of error is necessary to entitle a point to be considered on appeal. Johnson Aircrafts v. Wilborn, Tex.Civ.App., 190 S.W.2d 426; Miller v. Long-Bell Lumber Co., Tex.Civ.App., 217 S.W.2d 867 (affirmed by the Supreme Court).

We are of the opinion that Paragraph 5 above set forth deals only with the question of no evidence. Appellants’ point of error One is as follows:

“POINT ONE:
THE DISTRICT COURT ERRED IN OVERRULING APPELLANTS’ MOTION FOR NEW TRIAL BECAUSE THERE IS NO EVIDENCE OR THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT A VERDICT OF CONTRIBUTORY NEGLIGENCE ON THE PART OF PLAINTIFFS’ DECEDENT FOR THE REASONS THAT:
(1) THE EVIDENCE ADDUCED AS TO THE SPEED OF THE DRIVER DID NOT CREATE A DUTY FOR THE GUEST TO PROTEST SUCH SPEED:
(2) THE JURY COULD NOT DISREGARD A PORTION OF DRIVER’S TESTIMONY THAT THERE WAS NO NEED FOR DECEDENT TO WARN HIM AND BELIEVE TESTIMONY THAT HE FAILED TO WARN HIM AS A FACTOR IN ARRIVING AT THEIR VERDICT:
(3) THERE WAS NO EVIDENCE OR INSUFFICIENT EVIDENCE ADDUCED IN TRIAL COURT TO SUPPORT A FINDING THAT A PROTEST COULD HAVE BEEN MADE IN TIME FOR THE DRIVER TO HAVE AVOIDED THE COLLISION:
(4) THERE WAS NO EVIDENCE OR INSUFFICIENT EVIDENCE ADDUCED IN THE TRIAL COURT TO SUPPORT A FINDING THAT THE DECEDENT’S FAILURE TO PROTEST WAS A PROXIMATE CAUSE OF THE DAMAGES SUSTAINED BY APPELLANTS.”

However, we will consider the appellants’ points as to the insufficiency of the evidence to sustain the findings of the jury. There is evidence that appellee was operating a 730 John Deere tractor and going west on Highway 70 on the paved shoulder; that the two boys, Kenneth Hooper and Gary Copeland, were riding in a Falcon automobile and were going west on Highway 70 driving about 80 miles per hour; the Falcon collided with the left rear wheel of the tractor and then collided with a Ford automobile that was traveling east on Highway 70; the lights on the Ford did not bother the driver of the Falcon; the accident happened about twilight and it was necessary to have lights; that there were red lights on the rear of the tractor that could be seen for a distance of 500 feet. It is undisputed that the tractor had lights on the front of the tractor. There were pictures showing the conditions existing after the wreck, all of which showed the Falcon struck the tractor with great force. We have listed a few of the facts as to the accident leading up to the duty •of Gary Copeland to protest the way Kenneth Hooper was driving. We cannot say the jury was in error in holding that the speed the Falcon was being driven was such speed as to cause Gary Copeland as a passenger in the exercise of ordinary care to protest such speed to the driver. If Hooper was driving at a speed of 80 •or more miles per hour at twilight, as some evidence shows, so far as Hooper was concerned such driving would have been negligence per se. The jury found the Falcon was being driven at a speed in violation of the law as to speed. It is undisputed that Gary Copeland did not protest the speed Kenneth Hooper was •driving and such protest could have been made in time to have avoided the collision. Kenneth Hooper agreed that if Gary Copeland had protested the speed he would have slowed down the speed of the car. Neither can we hold the jury did not have sufficient evidence to say Gary Copeland’s failure to protest was a proximate cause of the damage sustained. Contributory negligence is a question of fact unless from all the testimony only one reasonable conclusion can be drawn. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

The jury found Gary Copeland in exercise of ordinary care should have protested the speed the Falcon was being driven and it is our duty to uphold that finding if it is supported by evidence of probative force and reasonable inferences therefrom considering only the evidence favorable to appellee and disregarding the evidence favorable to appellants. Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332; City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954.

We are of the opinion that there was substantial evidence to sustain the findings of the jury. Appellants’ first point of error is overruled.

Appellants’ point two was that the court erred in overruling appellants’ motion for new trial because the finding of “no damage” sustained by the appellants was contrary to the great weight and preponderance of the evidence as to be clearly wrong.

We think the question of “no damage” to the appellants as found by the jury became immaterial since the finding of the jury was in favor of appellee showing contributory negligence on the part of Gary Copeland. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W. 2d 334; Wilkinson v. Chambers, Tex.Civ.App., 205 S.W.2d 639.

It is stated in the case of Tumlinson v. San Antonio Brewing Ass’n, Tex.Civ.App., 170 S.W.2d 620 (writ refused WM), as follows:

“It has also been held that the refusal of a jury to answer an issue inquiring as to the amount of damages sustained, or to answer said issue ‘none/ is not reversible error when the jury’s answers to other issues disclose that no judgment favorable to the injured party could have been entered upon the verdict. This is true even though the amount of damage issues were unconditionally submitted and the evidence shows conclusively that injuries were sustained.
We overrule appellant’s second contention. Southern Pine Lumber Company v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Rogers v. Coca Cola Bottling Company, Tex.Civ.App., 156 S.W.2d 325; Harrison v. Missouri, Kansas & Texas R. Co., Tex.Civ.App., 89 S.W.2d 455.”

Appellants’ second point of error is overruled. Judgment of the trial court is affirmed.


text:
    FYFE CEMENT & SUPPLY COMPANY, Inc., Appellant, v. Alvin HACKER, Appellee.
    No. 7286.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1963.
    Rehearing Denied Nov. 18, 1963.
    Frank D. McCown, Dumas, for appellant.
    E. E. Coons, Texhoma, Richards & Ferguson, Dalhart, for appellee.
   NORTHCUTT, Justice.

This is a plea of privilege case. Appellant, defendant below, filed a plea of privilege to move the case to Potter County. Appellee, plaintiff below, filed a controverting plea claiming venue in Sherman County under Subsections 14 and 23 of Article 1995, R.C.S. It being the contention of appellant the trial court erred in sustaining venue in Sherman County because this was a suit for breach of oral contract and not for damages to land as provided under Subsection 14 of Article 1995, and also, that the trial court erred in sustaining venue in Sherman County because appellee failed to prove that a part of appellee’s cause of action arose within Sherman County.

The trial court overruled the plea of privilege in all things which we construe to mean that the court held appellee was entitled to retain venue in Sherman County under the terms of both subsections. Since we are of the opinion that appellee could retain venue in Sherman County under Subsection 23, we deem it unnecessary to discuss Subsection 14.

The plaintiff pleaded and proved that he entered into an oral agreement with the defendant whereby plaintiff agreed to purchase and defendant agreed to sell and deliver to the plaintiff approximately 32% cubic yards of concrete to be of a compressive strength of 2,500 pounds per square inch to be delivered on certain lots in Strat-ford, Sherman County, Texas. The plaintiff further pleading and proving sufficiently to hold venue in Sherman County that appellant delivered concrete onto ap-pellee’s land in -Sherman County and that said concrete began to crack, flake, and chip off and deteriorate and come apart and-just no good and was not of the quality that appellant contracted to sell and deliver to him and which appellee agreed to purchase.

It was stipulated that appellant was a domestic corporation and had its principal office and place of business in Amarillo, Potter County, Texas. Appellee’s original petition was made a part of his controverting affidavit and was introduced in evidence and the affidavit to the controverting plea stated that the allegations, denials, and facts set out in the controverting plea and the petition were true and correct.

It is stated in the case of Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91, by the Supreme Court as follows :

“(1) The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant’s domicile, must allege and prove, if the defendant asserts his privilege, are those which are stated in the particular exception in article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff’s petition.
“(2) The venue facts which a plaintiff is required to plead and prove under exception 9 are that the crime, offense, or trespass was in fact committed and that it was committed in the county where the suit is pending.
“(3) On the hearing of the plea of privilege, the issue made is tried in the ordinary way and the truth as to the fact or facts in issue is ascertained by the introduction and weighing of evidence offered by both parties.
“(4) On appeal from a judgment sustaining or overruling a plea of privilege, the power of the Court of Civil Appeals in reviewing the fact findings made by the trial court is the same as it is in any other appealed case.”

A manufacturer from whom an article is purchased impliedly warrants that such article is reasonably fitted for and will reasonably perform the service for which it was manufactured and sold. Oil Well Supply Co. v. Texanna Production Co., Tex.Civ.App., 265 S.W. 203 (writ dismissed); Johnson v. Agricultural Bond & Credit Corporation, Tex.Civ.App., 114 S.W.2d 385; Price v. Advance Rumley Thresher Co., Tex.Civ.App., 264 S.W. 113; Turner & Clayton v. Shackelford, 288 S.W. 815 (Tex.Com.App.). We believe there is sufficient pleadings and evidence to show an implied warranty that the cement was suitable for such intended purpose and also that the cement was not of the strength contracted to be sold and delivered and when the defective cement as alleged and testified to and poured into the form prepared in Sherman County, such act in delivering; the defective cement and poured as alleged and testified to was sufficient to establish that the cause of action or a part thereof arose in Sherman County as to hold venue in said county under Subsection 23, Article 1995. Judgment of the trial court is affirmed.


text:
    SOUTHWESTERN INVESTMENT COMPANY, Appellant, v. O. H. LANIER, Appellee.
    No. 7293.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1963.
    Rehearing Denied Nov. 11, 1963.
    Clayton, Martin & Harris, Amarillo, for appellant.
    Robert L. Strickland, San Antonio, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the trial court sustaining appellee’s plea of privilege. Appellant, Southwestern Investment Company, brought suit in the District Court of Potter County against appellee upon four promissory notes. Two of the notes, made payable to appellant, expressly fixed venue in Potter County; the other two notes, payable to the Southwest Acceptance Company, Inc. and subsequently assigned to appellant, expressly fixed venue in Bexar County. Each of the four notes was secured by a chattel mortgage lien on different trucking equipment. Upon motion of appellee, a resident of Bexar County, the trial court severed appellant’s cause of action on the two notes payable in Bexar County and sustained appellee’s plea of privilege as to these notes. The trial court’s order overruling appellee’s plea of privilege as to the two notes payable in Potter County is not before us.

It is appellant’s contention that the trial court erred in severing the cause of action and sustaining the plea of privilege as to the two notes payable in Bexar County. This contention is asserted on the ground the District Court of Potter County, having acquired venue of the suit as to two of the notes, had venue of the other two under Rule 51, Texas Rules of Civil Procedure, which sets out the declared public policy designed to avoid a multiplicity of suits. In support of this position, appellant relies on the so-called Middlebrook doctrine handed down in Middlebrook v. David Bradley Mfg. Co., 80 Tex. 706, 26 S.W. 935. This case is authority for the rule which enables a plaintiff with more than one cause of action against a defendant to join his causes of action and maintain venue as to all actions in the county where venue lies as to one of the actions. See Warner v. Goldman, Lester & Co., 117 Tex. 145, 298 S.W. 890; Pecos Valley So. Ry. Co. v. Parkhill Produce Co., Tex.Civ.App., 348 S.W.2d 208, affirmed 163 Tex. 88, 352 S.W.2d 723. This rule has not been established by reason of any exception to Article 1995, but solely because of the rule of public policy designed to avoid a multiplicity of suits.

The rule of the Middlebrook case does not apply to the situation before us. All four causes of action pleaded by appellant are based on promissory notes, and venue for each cause of action is clearly established by each note under exception 5 of Article 1995. Each note designates the place of performance. We think this is the vital and controlling distinction between the case at bar and the Middlebrook case. Boyd v. San Antonio National Bank, (Tex.Civ.App.), 171 S.W.2d 375, states the rule applicable to this case in the following language :

“However, a cause of action which may be maintained in a certain county solely because it is joined with a cause of action based upon a written instrument designating a particular county or a place of performance, can not be considered as a cause of action lawfully maintainable in a county in which the defendant does not reside under the provisions of exception 5 of Article 1995. To so hold and thus give effect to appellee’s contention here would contravene the declared public policy of the venue statutes.”

In view of the fact our venue statutes are for the primary purpose of giving a person the right to defend suits in the county of his residence, except under well-defined exceptions, we would not be justified in broadening the public policy of avoiding multiplicity of suits in the face of the undisputed facts of this case. The mere avoidance of a multiplicity of suits cannot be paramount when such action would be in direct conflict with the clear language of exception 5 of Article 1995.

Appellee’s plea of privilege as to the notes payable in Bexar County and his motion to sever were properly sustained. The judgment of the trial court is affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    Stewart C. JOHNSON, Appellant, v. Herbert E. WALKER, Jr., Appellee.
    No. 7531.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1963.
    Rehearing Denied Nov. 26, 1963.

      John Heyburn, Strong, Baker & Hey-burn, Houston, for appellant.
    Robert H. Walls, Barrow, Bland, Rehmet & Singleton, Houston, for appellee.
   DAVIS, Justice.

A venue case. Appellee sued J. B. Crad-dock, Jr., Stewart C. Johnson and Herrin Transfer and Warehouse Company, a Texas corporation, seeking to recover from them, jointly and severally, for a violation of a written contract and an amendment thereto. Johnson filed a plea of privilege. The plea of privilege was controverted, and was overruled. Johnson has perfected his appeal and brings forward four points of error.

By his points one and two, appellant contends the trial court erred because Subdivisions 4 and 5 of Art. 1995, Vernon’s Ann. Tex.Civ.St, are not applicable. On December 29, 1958, C. G. Herrin, et al., as Sellers, entered into a contract with Craddock and Johnson, as Purchasers, to sell to them ten shares of stock in the Herrin Transfer and Warehouse Company. The contract was to be performed and all payments were to be made in Harris County, Texas. On June 1, 1959, a contract was entered into between Craddock, et ux., and Johnson, et ux., as Sellers, to Herbert E. Walker, Jr., et ux., as Purchasers, for two shares of stock in the Herrin Transfer and Warehouse Company. The contract was amended on March 14, 1961. The first contract between Herrin, et al., as Sellers, and Craddock, et al., as Purchasers, was incorporated in and made a part of the second contract and the amendment. At the hearing on the plea of privilege, the appellee proved a cause of action. The corporate defendant was a resident and had its place of business situated in Houston, Harris County, Texas. Subdivisions 4 and 5, Art. 1995, provided, in part, as follows:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
* * * * * *
“4. Defendants in different counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * *
“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

This suit comes within the exceptions provided by Subdivisions 4 and 5 of Art. 1995, R.C.S. 43B T.J. 118, Sec. 9; Bayou Drilling Co. of Texas, Inc. et al. v. Baillio, Tex.Civ.App., 312 S.W.2d 705, W.R., N.R.E.; James et al. v. Drye et al., 159 Tex. 321, 320 S.W.2d 319; Bayou Properties Co. v. Gobble et al., Tex.Civ.App., 347 S.W.2d 314, N.W.H. See authorities cited under Subdivisions 4 and 5 of Art. 1995, R.C.S. Points one and two are overruled.

Appellant’s points three and four are without any merit and they are overruled.

The judgment of the trial court is affirmed.


text:
    William Jasper BELL, Appellant, v. Louie SPRAGGINS and Loren Howe, Appellees.
    No. 7289.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1963.
    Rehearing Denied Nov. 11, 1963.
    Harris E. Lofthus, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a false imprisonment case brought by William Jasper Bell, as plaintiff, against Louie Spraggins and Loren Howe, as defendants. For convenience Bell will hereafter be referred to as appellant and Sprag-gins and Howe as appellees. The appellees were employed as detectives by the Police Department of the City of Amarillo. Appellant pleaded that on August 13, 1962, he was informed by a friend that appellees wanted him to come to the police station to answer some questions and that in compliance with such information he went to the police station and submitted to questioning after which appellant and others were taken by appellees to various places in process of investigation of a suspected theft and subsequently returned to the police station. The appellant then alleged he was not guilty of any crime but immediately upon returning to the police station he was taken upstairs and lodged in the City Jail where he was fingerprinted and pictures taken and he was then placed in a cell with other prisoners, one of whom attacked and beat him. Appellant further alleged he was detained in custody by appellees from about 10:00 a. m. until about 4:00 p. m. on the same day without warrant, complaint, commitment, or any other process of any kind and was released from custody with no charge. ever having been placed against him. Then appellant pleaded his damages. The appellees answered contending that from the information furnished them by the complaining witness that appellee, Spraggins, asked the appellant and some other boys to come to the police station and Spraggins, after talking with the hoys a short time knew that he had the group that had stolen the transmission in question and that was the reason appellant was committed to jail. Appellees further pleaded they did no more than perform their duties as members of the Police Department of the City of Amarillo and were carrying out a governmental function in a proper and lawful way.

The case was tried to a jury upon three special issues. Special Issue No. One was as follows:

“Do you find from a preponderance of the evidence, if any, that at the time plaintiff was arrested on August 13, 1962, he was found by defendants under the circumstances which reasonably showed that plaintiff had been guilty of a felony? ”

The jury answered “yes”. Special Issue Two asked as to plaintiff’s damages. The jury answered “none”. The third issue asked if defendants in arresting the plaintiff acted willfully and maliciously with the design to oppress and injure the plaintiff. The jury answered “no”. Judgment was granted that appellant recover nothing.

Appellant filed his motion for a new trial upon three assignments of error as follows:

"FIRST: That the court erred in overruling plaintiff’s motion for instructed verdict on the issue of liability, for the reason that every material allegation of fact contained in plaintiff’s original petition on the issue of liability was admitted and proved by both plaintiff and defendants, leaving no disputed issue of fact for submission to the jury;
"SECOND: That none of the defenses raised by defendants were legal defenses to an action for false imprisonment, said alleged defenses not affecting the issue of liability but only going to mitigation of damages therefor;
"THIRD: That the finding of the jury in answer to Issue No. 2 that plaintiff suffered no actual damages is directly contrary to the evidence; ”

Rule 374, Texas Rules of Civil Procedure provides that “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.” Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (Supreme Court). It has often been held that a motion for new trial in a jury case constitutes the assignments of error to be reviewed by the appellate courts and that an assignment of error is necessary to entitle a point to be considered on appeal. Johnson Aircrafts v. Wilborn, Tex.Civ.App., 190 S.W.2d 426; Miller v. Long-Bell Lumber Co., Tex.Civ.App., 217 S.W.2d 867 (affirmed by the Supreme Court).

Although appellant has filed two different briefs in this case on his different points of error, we will attempt to consider all points raised by his motion for a new trial. The first point raised in the motion for new trial contends there was no disputed issue of fact for submission to the jury. This was purely a no-evidence contention. However, appellant contends the court should have held as a matter of law that appellees were liable under the facts of this case and the only issue that should have been submitted to the jury was as to the amount of damages. To agree with appellant’s first point in his motion for new trial it would be necessary to hold that appellees pleaded and proved no defense as to false imprisonment.

It was appellees’ contention they were permitted to arrest appellant without first obtaining a warrant because of a city ordinance authorizing them to make such arrest. The city ordinance in question provided a policeman may, without a warrant, arrest any offender or alleged offender when persons are found in suspicious places, or under circumstances which reasonably show that such persons have been guilty of some felony. The court charged the jury as follows:

“You are instructed that under the Ordinances of the City of Amarillo a police officer may arrest without warrant when persons are found in suspicious places, or under circumstances which reasonably show that such persons have been guilty of some felony, or threaten or are about to commit some offense against the laws of the State or Ordinances of the City. This ordinance is passed pursuant to authority given the City under the Statutes of the State of Texas.”

The appellant did not in any manner object to that portion of the charge but made the following objection to the submission of Issue One:

“Plaintiff objects of Issue no. 1 on the' ground that it fails to take into consideration the statute which requires that persons found under circumstances which reasonably show that such person had been guilty of a felony must also be shown to have been so found in a suspicious place; that said statute is not severable and may not be applied to the disjunctive, but the suspicious place and suspicious circumstances must concur in order to render such arrest lawful.”

Almost the identical ordinance using the word “or” was held to be valid in Citizens Hotel Co. v. Foley, Tex.Civ.App., 131 S.W.2d 402 (writ dismissed, judgment correct), the court held:

“And Section 1 of Ordinance No. 512 reads: ‘All policemen in the City of Fort Worth, in the exercise of a sound discretion, may arrest without a warrant therefor, any person or persons found in suspicious places, or any person or persons found under circumstances reasonably tending to show that such person or persons have been guilty of some felony or breach of the peace, or violation of some municipal ordinance, or about to commit some offense against some State law or against some municipal ordinance.’ Article 214, Code Criminal Procedure, provides for the passage of such an ordinance by municipalities as that above quoted. Such ordinances have been held by our courts to be valid. San Antonio & A. P. R. Co. v. Griffin, 20 Tex.Civ.App. 91, 48 S.W. 542, writ refused; Pratt v. Brown, 80 Tex. 608, 16 S.W. 443.”

. Article 1169, Texas Penal Code, defines false imprisonment as follows:

“False imprisonment is the wilful detention of another against his consent and where it is not expressly authorized by law, whether such detention be effected by an assault, by actual violence to the person, by threats or by any other means which restrains the party so detained from removing from one place to another as he may see proper.” (Emphasis ours).

If there was sufliciént evidence under the circumstances to reasonably show that appellant was guilty of stealing the transmission in question and that the transmission was of the value of $50 which would be a felony, Article 1421, Texas Penal Code, we think appellees had the right to arrest the appellant as was done in this case and would not be guilty of false imprisonment under this record.

It is undisputed that the property involved was of the value of $50 or more and that it was taken without the consent of the owner and was concealed from the owner. The question is whether there was sufficient circumstances to tie the felony crime to appellant to justify the appellees taking the steps they did. A Mr. Grant, the owner of the transmission in question, went to the appellees and told them the transmission of the value of $50 or over had been stolen and that he had a good idea who stole the property; that prior to the theft some boys drove up to his place of employment and inquired about purchasing the transmission; that he offered to sell the transmission to them for $50; that they left, stating they would be back; that from their actions he felt they would come back and steal the transmission; that he took precautions and chiseled identification marks on the transmission and also took the license plate number of the automobile in which the boys were riding'. After receiving this information, Spraggins learned from the information given him by Grant that the automobile was driven by one Charles Eaton on the occasion when the boys inquired about buying the transmission. Eaton told Spraggins that appellant and Jack Frye were with him when he talked to Grant but did not name any other boys. Spraggins told the boys to tell appellant to come with him to the police station that he wanted to talk with them. The boys came in and Spraggins questioned them individually and as a group. The boys remained silent during most of the questioning. The boys at first refused to give Spraggins consent for him to search their premises until one of the boys nodded that it was all right, then all agreed. During the questioning a fourth boy by the name of Charles Reed, a boy Spraggins had had trouble with, came in inquiring when the boys would be through. When Reed was leaving the police station one of the boys told Reed to clean out his car. It was at this time the three boys, appellant, Frye, and Eaton were arrested. Appellee, Sprag-gins, sent the three boys up to jail and tried to observe where Reed was going, thinking that probably the transmission was in Reed’s car and he intended to hide the transmission but soon thereafter Reed returned and told Spraggins that he was under probation and did not want to have any trouble but all three of the boys, meaning appellant, Frye, and Eaton, knew all about the transaction and later Eaton pled guilty and the other boys were released. Spraggins recommended the minimum penalty for Eaton and he received the minimum punishment. We believe there was sufficient evidence to sustain the finding of the jury that when appellant was arrrested he was found by appellees under circumstances which reasonably show that he had been guilty of a felony.

We think the question of no damage to the appellant as found by the jury became immaterial, since the finding of the jury was in favor of appellees showing no false imprisonment. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 by the Supreme Court. Finding no error presented, the judgment of the trial court is affirmed.


text:
    James J. KELLY, Appellant, v. STATE of Texas, Appellee.
    No. 7534.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1963.

      Scott Talbert, Talbert, Giessel, Cuthrell Barnett, Houston, for appellant.
    Waggoner Carr, Atty. Gen., Winston P. Crowder, T. B. Wright and Watson C. Arnold, Asst. Atty. Gen., Austin, R. H. Burks, City Atty., Jack D. Mulvihill, Asst. City Atty., Houston, for appellee.
   DAVIS, Justice.

A condemnation case. The award of the special commissioners was filed with the Judge of the County Civil Court at Law No. 2 on October 31, 1962. Notice of the award was mailed to condemnees on November 14, 1962, and was received by them on November 16, 1962. Objections to the award was filed with the Judge on November 28, 1962. The condemnees had twenty days after the filing of the award with the Judge to file their objections. Art. 3266, Sec. 6, Vernon’s Ann.Tex.Civ.St. A motion to reinstate the proceeding was filed by the condemnees on November 28, 1962, and was overruled on January 31, 1963. A motion in arrest of judgment was filed with the Judge on December 13, 1962, and was overruled on January 31, 1963. The money allowed by the award has been withdrawn by the condemnees and the in-tervenors.

The award was not filed by the Judge with the Clerk until November 28, 1962. Art. 3266, Sec. 6, should be amended. It should require the Judge to file the award with the Clerk immediately, and then require the Clerk to mail a notice, either registered or certified mail, to the con-demnors and/or condemnees, or their attorneys, and should further provide that either party shall have twenty days after the receipt of such notice to file their objections.

James J. Kelly, a condemnee, has attempted to perfect an appeal. Pie does not present a point of error. He attempts to base a point of error on a rule that has been promulgated by the Harris County Civil Courts, while the condemnation proceedings were still administrative. No objections having been filed with the Judge within twenty days after the award was filed with the Judge, the proceedings were administrative only. In Lemmon v. Giles, Tex.Civ.App., 342 S.W.2d 56, er. dismd., Chief Dixon said: “ * * * An eminent domain proceeding does not become a civil case pending in a court until a party to the proceedings has filed °^“ jections to the Commissioners’ award”. Pearson v. State of Texas, 159 Tex. 66, 315 S.W.2d 935; Henderson v. Texas Turnpike Authority, Tex.Civ.App., 308 S.W.2d 199, er. ref.; Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104, N.W.H. This court is without jurisdiction of the appeal. City of Big Spring v. Garlington, Tex.Civ.App., 88 S.W.2d 1095, N.W.H.

The appeal is dismissed.


author: NYE, Justice.

text:
    Chris H. ALLAN, Appellant, v. MATERIALS TRANSPORTATION COMPANY et al., Appellees.
    No. 3.
    Court of Civil Appeals of Texas. Corpus Ghristi.
    Nov. 14, 1963.
    Rehearing Denied Dec. 5, 1963.

      Wm. B. Mobley, Corpus Christi, for appellant.
    Guy Allison, of Allison & Longmire, Corpus Christi, for appellees.
   NYE, Justice.

This case grows out of a collision which occurred at an intersection on the northwest corner of the Nueces County Courthouse in Corpus Christi, Texas.

The plaintiff, Allan, was driving a station wagon west on Belden Street. Boykin, defendant and an employee of Materials Transportation Company, the other defendant, was driving their truck tractor east on the same street. At the intersection of Broadway and Belden Streets, the defendant made a left-hand turn in front of Allan while attempting to turn north from Belden Street to Broadway. The collision occurred at this point. Allan sued Materials Transportation Company and their driver-employee, Johnny J. Boykin, for personal injuries and property damage. The case was tried by a jury, and from the verdict and judgment in favor of the defendants, Materials Transportation Company and Boy-kin, the plaintiff has appealed.

Although the Appellant, Allan, predicates his appeal on the sole question of jury misconduct, the Appellees, by counterpoint, question (1) the jurisdiction of this court, and (2) contend that the trial court erred in receiving the evidence of jury misconduct. The question of jurisdiction is not in this case. We will dispose of the other part of the appellees’ counterpoint.

Appellant timely filed his motion and amended motion for new trial setting forth three grounds in his amended motion. First and second grounds were abandoned by appellant. His third ground stated as follows:

“One of the jurors was guilty of misconduct in that the Court specifically instructed the jury to ‘Be careful not to consider or mention any personal knowledge you may have about any fact or person, which is not shown by the evidence you have heard in this trial. Do not try to gather any evidence for yourself. Your duty is to answer these questions from the evidence you have here and from that alone’; that, one juror, Norbert Schwetzer, contrary to the instructions of this Court and during the process of this trial, before the jury had retired for deliberation, went to the scene of the accident in question and observed said scene for an undetermined length of time and that said juror mentioned facts concerning the intersection in question which lead other jurors to presume he was personally aware of the intersection and had personal knowledge as to same, contrary to the Court’s instructions.” (Italics supplied)

Appellant did not swear to his motion, nor did he attach to it the affidavit of juror Schwetzer or the affidavits of any other jurors, nor did he offer any explanation or excuse as to why affidavits were not secured and exhibited. Appellee filed a motion to strike appellant’s amended motion for new trial, to which appellant filed an answer, and attached to it three affidavits. One was from his Attorney, W. B. Mobley, one from juror Jack H. Stanton, and the other from juror L. D. Sassman. The record and affidavits disclose that juror Schwetzer was not the juror that committed misconduct, but that it was a juror by the name of L. D. Sassman. During the hearing on the amended motion for new trial, the trial judge overruled the appellee’s motion to strike, received the attached affidavits, and proceeded to hear the testimony of juror Jack H. Stanton and the testimony, by deposition of juror L. D. Sassman. Ap-pellee excepted and argues that the affidavits were filed some ten days after the last day an amended motion could be filed, and that the receiving of such affidavits and the testimony from jurors other than the one named in the amended motion for new trial was improper, and tantamount to permitting the appellant to file an additional amendment to his amended motion for new trial, in violation of Rule 329b, Section 2, Texas Rules of Civil Procedure.

Appellee contends that it was error for the trial court to receive this additional evidence and if his contention be correct, the appellant does not have any evidence of jury misconduct on which this Court could consider. We overrule appellee’s counterpoint.

Appellant’s ground for new trial was one of Jury misconduct. Where this ground is alleged, the motion should be supported by the affidavit of a juror or jurors or a reasonable explanation as to why such affidavit cannot be obtained. There is no rule that makes this requirement, but in order to avoid a fishing expedition based on hope and suspicion, the courts have required this. It is the duty of the complaining party when he is suspicious of jury misconduct, and in order to safely assure himself that justice will be done, to follow the correct rules laid down by our Supreme Court in the Roy Jones Lumber Co. v. Murphy case, 139 Tex. 478, 163 S.W.2d 644 (1942).

“(1) [I]f affidavits are attached to the motion showing material jury misconduct it is reversible error for the trial court to refuse to hear testimony on the motion, * * * *
(2) or, if the motion discloses a reasonable explanation and excuse as to why affidavits cannot be secured and exhibited, in connection with sufficient allegations of material jury misconduct, it is likewise reversible error to decline to hear testimony on the motion, * * * * but
(3) in the absence of such affidavits or a reasonable excuse for not exhibiting the same, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge.”

Appellant’s motion was not such that would command the trial court to hear the evidence of jury misconduct. However, operating within the sphere of its sound discretion, the trial judge is allowed great latitude in passing on a motion for new trial. Such power was very ably described by Associate Justice Sutton in Equitable Life Assur. Soc. of the United States v. Murdock, 219 S.W.2d 159, 164 (Tex.Civ.App., 1949, ref. n.r.e.).

“The greater latitude is allowed the trial court in granting than in refusing new trials, since in such cases the rights of the parties are not finally settled. There are many apparent reasons why the trial court is permitted to exercise so liberally this inherent power and discretion. The trial court having the parties, the witnesses and counsel before it, and the opportunity to observe their demeanor and conduct during the trial and to note all incidents occurring during its progress likely to affect the results of the trial, is better qualified to judge whether a fair trial has been had and substantial justice done than is the appellate court, it is said. * * * In the opinion of this writer it is this inherent power and the discretion well placed that makes a District Judge the most important officer in the State Government and a good one the most valuable, because armed with this power and discretion, if justice miscarries it is generally his fault.”

A motion for new trial to the complaining litigant is in fact, as in law, a vital step in the trial and appeal of a jury case. The trial judge’s responsibility does not end on the rendition of judgment, but in order that justice be done, it is incumbent upon him to exercise sound discretion and the same impartiality which he manifests throughout the trial in determining whether or not misconduct occurred, and if proved, that injury probably resulted to the complaining party (See McDonald Texas Civil Practice, Section 18.01).

The complaining appellant asserted jury misconduct to the trial court. Rule 327, Texas Rules of Civil Procedure states that: “Where the ground of the motion is misconduct of the jury * * * * that they received other testimony, * * * * the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, * * * * be material, and if it reasonably, appears from the evidence-both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

The rules provide that only one amendment to a motion for new trial may be had (T.R.C.P. 329b, Section 2), and the movant shall confine the evidence presented to that covering the alleged ground specified in the motion (T.R.C.P. 320). Where the motion does not contain supporting affidavits, and the motion fails to disclose a reasonable explanation for such absence, we hold that the receiving of additional evidence of jury misconduct from additional jurors other than the juror named in the motion, was discretionary with the trial judge. The hearing of such evidence did not amount to an additional amendment to the amended motion, when the evidence was confined to the ground alleged in the motion. This case, and the evidence contained in its record, is properly before this Court on appeal.

Appellant’s point on appeal is that the trial court erred in denying his motion for new trial because one of the jurors visited the scene of the accident in question during the trial of this case. The jury found primary negligence of the appellee which proximately caused the damages to the appellant. The jury further found that the appellant was guilty of contributory negligence in three particulars. First: That the appellant was operating the automobile he was driving at a speed in excess of that speed which a person of ordinary care and prudence would be operating such under the same or similar circumstances. Second: That he drove his vehicle in excess of the statutory speed of thirty miles per hour and that, in driving in excess of thirty miles per hour, the appellant was negligent. Third: That the appellant failed to swerve his vehicle to the right in order to avoid the collision in question. Each of these acts of contributory negligence were found to be a proximate cause of the collision.

It is undisputed that juror L. D. Sassman visited the scene of the accident after the trial was in progress and during a noon recess for the purpose of making observations of such intersection, and before retiring with the other members of the jury to consider the verdict. This was error for, juror Sassman to visit the scene of the accident, and as such, amounted to jury mis-qonduct.

T.R.C.P. 327, relating to jury misconduct which requires the granting of a new trial, provides that even though misconduct is’ proved, a new trial will not necessarily be required unless it is also shown to have been material in nature, and that it probably did cause injury to the complaining party. Ballinger v. Herren, 332 S.W.2d 131 (Tex.Civ.App., 1960); 41 Tex.Jur.2d, Section 49. These elements are not shown in the record presented to us on appeal.

The pertinent portions of the testimony taken by deposition of juror L. D. Sassman, Jr., were as follows:

Mr. Sassman stated that he was one of the jurors who ultimately rendered a final decision in the case. That he went to the intersection of Broadway and Belden Streets (at the northwest corner of the Courthouse) during one of the noon recesses after the trial had started but before the case was submitted to the jury. He stated that he stood and looked at the general appearance of the intersection, just getting a feel of the visibility or feeling of the site, and stayed there approximately five minutes. He stated that he had seen this intersection many times since he was raised in Nueces County. The testimony of juror Sassman continued on direct examination by appellant:

“Q. And when you observed the intersection this time what did you notice, if anything, different than any other time you had seen it, if you had?
“A. It seemed the street was wider and the visibility was better than I remembered, and also the Expressway had been built. * * *
“Q. All right. Now, after you retired to the Jury Room, did you still have — let me ask you, did you or did you not have the recollection of the site in your mind, when you did deliberate with the other jurors?
“A. Yes, subconsciously I did. * * *
“Q. Did your observation of the scene at the time, did it assist you in forming an opinion of the intersection itself?
“A. No, sir; I do not think it did.
“Q. When you went to the jury room to deliberate with the other jurors, did you discuss any of these facts with the jury or other jurors to your knowledge?
■“A. Not specifically, to my knowledge, I did not. * * *
“Q. Well, in considering the question by Mr. Mobley (attorney for appellant) and in the issue concerning Mr. Allan’s swerving to the right, did you consider the knowledge you gained from the inspection of the site concerning the width in answering that issue?
“A. No, sir, I don’t think so, because the exact width was given in testimony.”

ON CROSS EXAMINATION BY AP-PELLEE:

“Q. Did you see anything while you were standing there five minutes that changed your opinion at all one way or the other?
“A. None whatsoever. * * *
"Q. Did you tell anybody on the jury that you had gone to the intersection and looked at it and what the lawyers had agreed upon, or what you heard, was right or not right?
“A. No, sir; not to my knowledge.
“Q. When you answered the issues as to speed, as to the speed of Chris Allan’s car, as far as you can recall, did you mention or consider anything except the expert testimony as to how fast he was going and not anything else you might have gained from the inspection at the intersection?
“A. No, sir.”

Mr. Stanton, another juror, was called as a witness during the hearing on the motion for new trial and he stated that L. D. Sass-man was one of the parties serving on the jury with him.

ON DIRECT EXAMINATION BY APPELLANT:

“Q. Do you recall having a conversation or overhearing a conversation with Mr. Sassman relative to the intersection in question on Belden and Broadway?
"A. Yes, sir. * * *
“Q. THE COURT: Did you talk directly to Mr. Sassman?
“A. I listened to his comments. * * *
“Q. Did he expound any degree ?
“A. No, just ask questions in the effect of saying “If you are familiar with the site of the accident as I am, then you would reach such and such a conclusion, which I don’t recall.”
“Q. Did he say that in the presence of the other jurors?
“A. Yes, two or three others.”

ON CROSS EXAMINATION BY AP-PELLEE:

“Q. All right. Do you recall anything the man (Sassman) said relative to actually going to the scene of the accident; saying anything, or stating what he said, or the way he said it, that made you think he was there?
“A. As I said in the deposition, I was not able to conclusively tell whether he was familiar with the scene of the accident prior to the trial, or whether during the trial he had been to the site of the accident.
“Q. Did he say anything about the visibility, width of the street, type of pavement, or anything to any degree conflicting with the undisputed evidence you had as to the width of the street and the visibility ?
“A. I don’t recall his statement conflicting with the evidence.”

The testimony on the trial of the «ase is not before us. The record does not disclose that the appellant subpoenaed any other jurors nor was there any other testimony taken from any other jurors concerning the probable effect of the misconduct of the juror Sassman. We have reviewed the record that is before us very carefully, and therefore hold that from all of the testimony offered, appellant failed to' m'eet the burden imposed by Rule 327, T.R.C.P., to establish by a preponderance of the evidence that probable injury resulted to him which caused or probably caused the rendition of an improper judgment. City Transportation Company v. Sisson, 365 S.W.2d 216 (Tex.Civ.App., 1963); Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App., 1960, ref. n. r. e.); Willis v. Goodrum, 360 S.W.2d 182 (Tex.Civ.App., 1962, ref. n. r. e.); Davis v. Damge, 328 S.W.2d 203 (Tex.Civ.App., 1959, ref. n. r. e.), and authorities cited therein.

Appellant, in the examination of the jurors, failed to produce any evidence that showed probable harm to him. We readily conclude, and so find, that there was no evidence of probable harm or any influential connection in the misconduct of juror Sass-man that did in any way affect the jury’s answers in convicting the appellant of excessive speed or failing to swerve his vehicle to the right. We hold that the misconduct complained of by the appellant, when viewed as a matter of law, was harmless, and could not and did not affect the results of the jury in defeating his cause of action against the appellees.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    LEGAL SECURITY LIFE INSURANCE COMPANY, Appellant, v. Jesse ERWIN, Appellee.
    No. 7516.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 22, 1963.
    Rehearing Denied Nov. 19, 1963.

      John W. Hicks, Douglas E. Bergman, Wilbur T. Knape, Dallas, for appellant.
    James R. Strong, Long, Strong, Jackson & Strong, Carthage, for appellee.
   DAVIS, Justice.

This is an action brought by the appellee against the appellant to recover benefits under a hospitalization and surgical indemnity insurance policy for expenses for hospital confinements. Trial was to a jury. The answer to the Special Issues were in favor of the appellee. Judgment was entered for the appellee, and appellant has perfected its appeal and brings forward twelve points of error.

By its points 1 through 10 appellant contends the court erred in entering judgment for the appellee for the following reasons: The judgment is not supported by the findings of the jury; the appellant waived and is estopped from asserting its affirmative defense of poor health; in overruling'and failing to sustain its motion for directed verdict; in overruling and failing to sustain its motion for judgment non obstante veredicto; in failing and refusing to submit to the jury its Special Issue No. 1; in overruling its objections to Special Issue No. 1; and, in overruling its objections to- Special’ Issues Nos. 2-3, and 8-19. Throughout the points of error appellant takes the position that the appellee was not in good health at the time he made the application for the policy, at the time the policy was issued and delivered and, at the effective date of said policy or fifteen days after Feb. 23, 1959, and at all times subsequent thereto.

According to the evidence, on February 23, 1959, O. E. Mason, Agent for the appellant, approached the appellee for the purpose of selling him the insurance that is involved in this lawsuit. He met the appellee in the road, got out of his car and got into the pickup with the appellee, a man then 65 years of age. The agent made out the application for the policy. Appellee told the agent that he was suffering with arthritis at that time. This fact was written down in the application. The twisted and deformed condition of appellee’s hands was apparent to any person at the time he signed the application for the policy. The appellant issued the policy, knowing that appellee was afflicted with arthritis, and continued to receive payments of premiums after appellee had made a claim on the policy. Appellant admits in its brief that it knew the appellee had arthritis. There .is no issue of fraud in the case. The evidence offered showed that the appellee was in good health at the time he made application for the policy, save and except that he had arthritis. The evidence is sufficient to support the jury’s findings.

Appellant knew that appellee was afflicted with arthritis, and it has waived and is estopped from asserting that the appellee was not in good health because of the arthritis. Perry v. Citizens Life Ins. Co., (Tex.Civ.App.) 163 S.W.2d 743, N.W.H.; 22 T.J.2d pp. 664-666, Secs. 4, 5, 6 and 7; 32 T.J.2d pp. 59-69, Secs. 24, 25, 26, 28, 29, 30; Wagner v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S.W. 569; 32 T.J.2d 249-254, Secs. 145, 146, 147; Bankers Life Ins. Co. of De Moines, Iowa v. Sone, 5 Cir., 86 F.2d 780; National Life Assurance Co. of Texas v. Neves, (Tex.Civ.App.) 370 S.W.2d 144; Appellant’s points 1 through 10 are overruled.

App'ellant did not raise its points ■¡of error 11 and 12 in its amended motion ■for new trial in the trial court. The points have been waived. Wagner v. Foster, 161 Tex. 333, -341 S-W.2d 887. The judgment of the trial court is affirmed.


author: STEPHENSON, Justice/

text:
    C. L. MINTHORN et al., Appellants, v. J. O. HALE, as Mayor of the City of Daisstta, Texas, Appellee.
    No. 6670.
    Court of Civil Appeals of Texas. Beaumont.
    Nov 7, 1963.
    Cain & Cain, Liberty, for appellants.
    Zbranek & Friend, Liberty, for appellee.
   STEPHENSON, Justice/

This is a contest of a special election held to determine if revenue and tax bonds should be issued by the City of Daisetta. Trial was before the court, and judgment was entered denying the contest.

The parties, stipulated in the trial court as follows:

“(1) That prior to and' at the time of said election
(a). No City tax levy had been made,
(b) None -of -the citizens of said • City had rendered their property for City taxation,-
(c) None, of such property had been placed on its tax rolls, rendered or unrendered, nor was any such rendition thereof required, and
(d) No tax rolls or other records existed which would identify such owners.
“(2) That said city was incorporated on April 22, 1961, and was operating under the General Laws of Texas.
“(3) That the resolution calling the election, and the published notice contained the following:
1 at which election there shall be submitted to the duly qualified resident electors of said - city who own taxable property within said City and who have duly rendered the same for taxation’.”

The electors voted favorably to the issuance of all bonds, but no proposition carried by more than 69 votes. 261 electors voted, which left more than 85 who did not vote.

It is the contention of the contestants that the election is void because the resolution calling the election and the public notice called for the wrong electorate. That, inasmuch as no one had rendered their property for taxation, the resolution and notice, as given, could not be complied with.

Both the Constitution of the State of Texas in Art. 6, Sec. 3a, Vernon’s Ann.St., and the Texas Election Code, Art. 5.03, V.A.T.S., each provide in identical wording, that in elections held for the purpose of issuing bonds or otherwsie lending credit, or expending money or assuming any debt, only qualified electors who own taxable property and who have duly rendered the same for taxation shall be qualified to vote.

The application of these provisions has been construed in several cases. In the case of Hanson v. Jordan, 145 Tex. 320, 198 S.W.2d 262, an election for issuing bonds in the City of Cleveland, was contested. In the Hanson Case, no taxes had been collected, and no property rendered for taxes, prior to the election. It was contended in the Hanson Case, supra, that no citizen was qualified to vote in the election because no one had rendered his property for taxation. The notices given by the City of Cleveland, and by the City of Dais-etta, were identical. The Supreme Court denied the contest in the Hanson Case, supra, and held the electors were qualified to vote even though they had not rendered their property for taxation. The question raised in the present case was not directly before the court in the Hanson Case, supra, and apparently has not been heretofore passed upon in this state. It is not contended in the present case that those who voted were not actually property owning citizens within the bounds of the City of Daisetta, or otherwise not qualified.

It has been said many times by our courts that the object of every popular election is to ascertain the will of the qualified electors in the area to be affected thereby upon the issue or issues submitted to them.

Our courts have also said, a number of times, that statutory enactments concerning elections must be strictly enforced to prevent fraud, but liberally construed in order to ascertain and effectuate the will of the voters. Turner v. Teller, Tex.Civ.App., 275 S.W. 115.

The rule is that statutes regulating the manner of holding an election are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure, or such irregularity have affected or changed the result of the election. Hill v. Smithville Independent School District, Tex.Comm.App., 251 S.W. 209.

There is no evidence in this case that fraud, or misconduct or the irregularity complained of affected the result of the election.

Portions of depositions of all of the four contestants were offered in evidence, and all testified that they knew of no one misled by the notice and no one who was prevented from voting. The evidence also showed the election was well publicized. A copy of a brochure was delivered to every home in the City of Daisetta showing the qualifications of the voters to be as follows:

“(1) Live in the City of Daisetta.
“(2) Own property (real or personal) within the City of Daisetta which is subject to taxation.
“(3) Have paid poll tax used in 1963 voting or be exempt because of age or physical' defect.”

We conclude the contestants have not discharged their burden and proved the irregularity complained of affected or changed the result of the election.

Affirmed.


author: MASSEY, Chief Justice.

text:
    SOUTHWESTERN INVESTMENT COMPANY et al., Appellants, v. W. V. GIBSON et al., Appellees.
    No. 16463.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 8, 1963.
    Rehearing Denied Dec. 6, 1963.

      Jones, Fillmore, Robinson & Lambert, and Harold Jones, Wichita Falls, for appellants.
    Schenk & Wesbrooks, and Perry Wes-brooks, Wichita Falls, for appellees.
   MASSEY, Chief Justice.

A question on appeal relates to the propriety of the action of the trial court in overruling a defendant’s plea of res judi-cata on the matter of venue, in that appellant-defendant contended that there had been previous action, in and by courts of competent jurisdiction, the legal effect of which settled the matter of the situs for trial of the asserted cause of action against it.

We hold that the trial court erred and that the plea of res judicata should have been sustained as to the defendant in question.

Plaintiff’s cause of action was for damages on account of personal injuries sustained by his wife as the result of trespass and the unreasonable collection efforts of the defendant Investment Company, a corporation. The acts, which according to plaintiff constituted unreasonable collection efforts amounting to tort, must have been done and performed by the Investment Company through an agent, servant, and employee acting within the scope and course of his employment, for it is only through its agents that a corporation may commit a tort.

After the alleged tort plaintiff first filed suit in the District Court of Archer County. By such suit a single defendant was named, being the Investment Company. A plea of privilege to be sued in Potter County was filed, but before time for the filing of a controverting affidavit the plaintiff took a nonsuit.

After having taken the nonsuit in Archer County plaintiff filed a new suit, though upon the same cause of action, in Wichita County. The Investment Company filed a plea of privilege to be sued in Potter County. Plaintiff joined as defendant along with the Investment Company one Sinclair, a resident of Wichita County, who was alleged to have been the agent of the Investment Company who committed the tort. After plaintiff filed a controverting affidavit to the Investment Company’s plea of privilege, a hearing on the plea was held in the District Court of Wichita County. During- the course of the hearing it developed that it was not Sinclair who had committed the tort by reason of which the plaintiff’s cause of action, if any, had arisen against the Investment Company, but it was one Carol Stites, a resident of Wichita County, who had been the actor. Stites was acting within the scope and course of his employment by the Investment Company.

At the conclusion of the Wichita County hearing the trial judge noted upon the court’s docket sheet that the Investment Company’s plea of privilege was sustained. On August 1, 1962, an order was entered to that effect, in which the court further decreed: “ * * * the venue of such cause is changed and that such cause be transferred to the 47th Judicial District Court of Potter County, Texas, * * On the same day plaintiff obtained an order of nonsuit against both Sinclair and the Investment Company.

Thereafter plaintiff filed suit upon the same cause of action in Archer County, joining Carol Stites with the Investment Company as an additional defendant. The Investment Company filed its plea of privilege to be sued in Potter County. Stites filed his plea of privilege to be sued in Wichita County. Plaintiff controverted these pleas. The Investment Company filed a plea of res judicata on the matter of venue, contending that in so far as plaintiff’s suit obtained against it the situs for trial had theretofore been judicially fixed as Potter County.

As previously stated, the contention of the Investment Company was correct and its plea of res judicata should have been sustained. Standing alone, the antecedent procedure in either of the courts where the plaintiff’s suit had been theretofore filed would foreclose any trial of plaintiff’s cause of action against the Investment Company anywhere other than in Potter County, the place of its residence. Actually the matter was settled when plaintiff took a nonsuit in the suit first filed in Archer County at a time when the Investment Company’s plea of privilege was on file. It is immaterial that no controverting affidavit had been filed at the time. The legal result was the establishment of the situs for the trial of the cause of action as that asserted in the plea, as a matter of admission by the plaintiff, in so far as relief to be sought in the same cause of action might pertain to the Investment Company. First Nat. Bank in Dallas v. Hannay, 1933, 123 Tex. 203, 67 S.W.2d 215.

The same thing could be said of the proceedings in Wichita County. A plea of res judicata, by the Investment Company in that court, coupled with demonstration to the court that the cause of action asserted against it was unquestionably the same as the cause theretofore asserted by plaintiff in Archer County, would establish conclusively that the court was confronted with a matter upon which it had no authority, or a matter as to which it had authority limited to the entry of an order transferring the case (as to the Investment Company) to Potter County. 43-B Tex.Jur., p. 455, “Venue”, § 181, “Effect of Order”; Wichita Falls & S. R. Co. v. McDonald, 1943, 141 Tex. 555, 174 S.W.2d 951.

As the case stood, when refiled in Archer County, the legal view proper to be taken should have been that “once again” the plaintiff had mistakenly filed his case against the Investment Company in the wrong court, in a court which could not have jurisdiction of the case on its merits (at least absent consent by the Investment Company), and whose only authority, upon establishment, that it was the same cause of action previously resolved or to be treated as resolved in so far as the matter of venue appertains, was to enter an order transferring the case to Potter County.

That the plaintiff had previously erred in believing that it was Sinclair, and not Carol Stites, who was the agent through whom the Investment Company had acted to the injury of his wife and himself would not change the legal situation. Neither would the fact that plaintiff’s previous actions in respect to litigation had been the result of the erroneous belief. It was indeed unfortunate, but from the cases by which we are guided it appears that the law’s attitude in such circumstances is devoted to protecting the rights of defendants to have suits filed against them tried in the counties of their residence, once plaintiffs have either abandoned or failed in their attempts to establish a right, under statutory provisions, to conduct the litigation elsewhere.

The mere presence in one suit of additional parties not included in that wherein a valid judgment is claimed to have operation to estop prosecution thereof does not prevent the estoppel of the former judgment from binding those who were parties to it and also parties to the suit in which a plea of res judicata is set up. Such estoppel would apply except in an instance where the addition of parties would create a diversity of issues as well. 50 C.J.S. p. 204 Judgments Ch. XIX, Res Judicata § 720, “(Matters Concluded by Judgment)—Effect of Diversity of Parties”; Restatement of the Law of Judgments, p. 353, Effect of Judgments with Reference to Persons § 79, “Parties— General Rule”.

In questions of similarity it is well to be mindful in plea of privilege cases that it is not strictly accurate to speak in terms of res judicata in instances where plaintiff takes a nonsuit before judgment, for the doctrine normally applies only when there has been a final judgment upon the merits of the matter concluded. Courts do so speak of it as a matter of convenience though the application of pertinent rules are really grounded upon a principle of policy; the defendant should not be subjected to the repeated expense of presenting his venue claim in successive actions by a plaintiff who, through the abuse of his privilege of taking a nonsuit, prevents a final adjudication upon the question. Where a court, after hearing, does enter an order sustaining the plea of privilege, such order carries the same connotation as a judgment, which, when it becomes final, may be accurately referred to as res judicata. McDonald, Texas Civil Practice, p. 470, “Venue”, § 4.62, “Order as Res Judicata”. See also Clark, Venue in Civil Actions, p. 243, “The Hearing”, § la, “Effect of Dismissal or Non-Suit Prior to or During Hearing”, and p. 250, | 3a, “Effect of Dismissal After Hearing”.

It is to be noticed that the parties defendant to the suit last filed in Archer County are not such as would be termed “necessary parties” who must be present for any proper trial in any forum. Therefore the particular situation with which the court was confronted in Peavy v. Ward, 1962, Tex.Civ.App., Texarkana, 352 S.W. 2d 882, writ dism., is without application. This case cites a rather complete list of authorities upon the matter of res judicata in plea of privilege cases.

We next consider the propriety of the action of the trial court in overruling the plea of privilege of Carol Stites.

Stites’ points of error present contentions that there were no acts proven essential to the maintenance of the plaintiff’s action .against him in Archer County, that the evidence was insufficient to support an affirmative finding of the existence of such facts, and that the judgment was so against the great weight and preponderance of the credible evidence as to be manifestly wrong.

We have reviewed the record in light of the attack presented and have concluded that there is no merit therein. The prima facie case made out by plaintiff, requisite under the circumstances to demonstrate his right to prosecute the cause of action upon which he declared as against Carol Stites, adequately supported the action of the court. The findings upon which such action was founded were not contrary to the great weight and preponderance of the evidence.

As to appellant Carol Stites the judgment is affirmed.

As to appellant Southwestern Investment Company the judgment of the trial court is reversed and judgment is rendered ordering that plaintiff’s case against it be transferred to the District Court of Potter County, Texas.


text:
    George McCORMICK, d/b/a McCormick Insurance Agency, Appellant, v. VERNON BUTLER CHEVROLET COMPANY, Inc., Appellee.
    No. 7522.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 8, 1963.

      Witts & Ewing, Dallas, Long, Strong, Jackson & Strong, Carthage, for appellant.
    Law Office of Tom Bankhead, Carthage, for appellee.
   FANNING, Justice.

This is a venue case. Appellee motor company sued R. S. Crawford and George McCormick, d/b/a McCormick Insurance Agency in the District Court of Panola County, Texas, on an account for repairs made by appellee on the automobile of Crawford, and appellee sought a joint and several monetary judgment against Crawford and McCormick and also sought a foreclosure of a mechanic’s lien against the automobile in the possession of Crawford. McCormick filed a plea of privilege to be sued in Dallas County, Texas, the county of his residence. Plaintiff-appellee filed his controverting plea asserting venue to be in Panola County, Texas, under exceptions 5' and 29a of the venue statute, Vernon’s Ann. Civ.St. art. 1995. The trial court overruled McCormick’s plea of privilege and he has appealed.

Crawford signed an instrument in writing agreeing to pay appellee for the repairs in Panola County, Texas, and venue as to Crawford was proper in Panola. County, Texas, under exception 5 of the venue statute. However McCormick did not execute any contract in writing agreeing to-pay in Panola County, Texas, so it is clear that McCormick can not be held in Panola County under exception 5.

Appellee contends that McCormick is a necessary party to the suit and that venue is maintainable in Panola County against McCormick under exception 29a.

As we understand plaintiff-appellee’s pleading and proof, it seeks to recover judgment against McCormick, the insurance agent of Crawford, not on any written contract of McCormick, but on the written contract of Crawford, and the oral contract or oral representations of McCormick to the effect that McCormick authorized the repairs in question and agreed that he and the insurance company he represented which carried Crawford’s insurance would pay for such repairs and that McCormick orally assured appellee that the insurance company check for the repairs would be issued in the name of appellee, and that contrary to such assurance, the insurance company check was made payable to Crawford who refused to deliver same to appel-lee but converted same to his, Crawford’s benefit. The record reveals that a controversy arose between appellee and Crawford as to whether the repairs were properly made and as to whether appellee’s charges were excessive.

Under our venue statutes it must be clearly shown that the case comes within some well-defined statutory exception before one may be deprived of his right to defend a suit against him in the county of his residence. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107.

The party relying upon exception 29a to hold venue in a county other than the county of the residence of a defendant asserting his statutory privilege must plead and prove that such a defendant is a necessary party to the action. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758; Clark, Venue in Civil Cases, ch. 29a § 6; McDonald, Texas Civil Practice, § 4.36.

In Ladner v. Reliance Corporation, supra, it was stated in part as follows:

■ “When an action is maintainable in a particular county under some subdivision other than 29a, the plaintiff, if successful, will be entitled to certain relief in the suit which thus' can be brought in such county. Every person whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be 'maintained in that county is a necessary party within the meaning of Subdivision 29a. Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74; Pioneer Building & Loan Ass’n. v. Gray, supra, [132 Tex. 509, 125 S.W.2d 284]; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Ramey & Mathis v. Pitts, 149 Tex. 214, 230 S.W.2d 211; Clingingsmith v. Bond, supra, [150 Tex. 419, 241 S.W.2d 616]. It was, therefore, incumbent upon appellant to establish that the joinder of appellees is necessary to enable him to obtain full and effective relief in the suit which he is entitled to maintain in Jasper County against Mr. and Mrs. Newman under Subdivision 3.”

Another statement pertinent to exception 29a is found in McDonald, Texas Civil Practice, 1962 Cumulative Supplement, p. 146, which text cites Andretta v. West, Tex.Civ.App., 318 S.W.2d 768, wr. ref., n. r. e., as follows:

“Another statement of the requirement (where A is the defendant as to whom venue in the county is established and B the defendant pressing a plea of privilege) is that there ‘must be pleadings and proof of (1) a joint cause of action’ against A and B ‘in which’ B ‘must necessarily be joined in order for’ plaintiff ‘to secure the full relief to which he might be entitled in the suit against’ A; ‘or (2) that’ B has ‘an interest in the suit which could be affected by any decree completely adjudicating the rights of’ plaintiff and A; ‘or (3) that no effectual decree could be rendered without joining’ A and B.”

In York Supply Company v. Dunigan Tool & Supply Co., Tex.Civ.App., 276 S.W.2d 317, it was stated in part as follows :

“York Supply Company was not a •necessary party to the suit against J. M. Lawrence as' contemplated by the statute and as set out in the above rule. * * * There was no showing that the note was executed by York Supply Company or under its authority, nor was it shown that York Supply Company was the principal obligor and that Lawrence had signed the note as surety. See Rules 31 and 163, Vernon’s Texas Rules of Civil Procedure. Under such circumstances the plaintiff could have dismissed the case as to York Supply Company and proceeded to judgment against Lawrence alone. * * *
“The relief to which Dunigan Tool & Supply Company was entitled as against Lawrence, the defendant properly suable in Stephens County, was a money judgment. This relief could he had by a judgment against Lawrence alone. The absence of York Supply Company as a party to the suit was no bar to a judgment against J. M. Lawrence for the amount of the note. The York Supply Company was not, therefore, a necessary party in the strict sense that the suit against Lawrence could not be maintained in its absence. Nor' was it a necessary party in the broader sense contemplated by subdivision 29a of the statute, according to the rule set. out in the Byrd case, supra, [142 Tex. 257, 177 S.W.2d 774], which is controlling. See also Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Cockburn Oil Corp. v. Newman, Tex. Civ.App., 244 S.W.2d 845; Moreland v. Hawley Independent School District, 140 Tex. 391, 168 S.W.2d 660; Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616.”

In Cockburn Oil Corporation v. Newman, Tex.Civ.App., 244 S.W.2d 845, it was stated in part as follows:

“All the relief prayed for by appellee Newman or to which he was entitled as against Bardin, the defendant properly suable in Coleman County, was a money judgment against Bardin. This relief .is obtainable in a suit in which appellant Cockburn Oil Corporation is not joined and appellant, therefore, is not a necessary party to such suit. Tarrant v. Walker, Chief Justice, 140 Tex: 249, 166 S.W.2d 900, 902; Moreland v. Hawley Independent School District, 140 Tex. 391, 168 S.W.2d 660 (Com.). In the case of Tarrant v. Walker, supra, Judge Brewster said: 'Either defendant is liable for the damages suffered by Mrs. Tarrant, and she could have full satisfaction therefor by judgment and execution against either. All the relief to which the Tarrants are entitled as against The Texas Company can be so enforced in the district court of Polk County, under subdivision 23, Art. 1995, supra, without Gunter’s pres-encé as a defendant. Therefore, Gun-ter is not a necessary party to the suit within' the meaning of subdivision 29a.’ ”

Also.in connection with the rules of-law announced by the York and Cockburn cases, supra, and authorities cited therein, see the following additional authorities: Lewis Boggus Motors Co., Inc., v. Hill, Tex.Civ.App., 340 S.W.2d 957, error dismissed; Coleman County Tel. Co-Op. v. Cunningham, Tex.Civ.App., 318 S.W.2d 461.

The only obligor on the written contract in question was defendant Crawford. Appellant McCormick who did not execute such written contract was not bound by such written contract either jointly or severally. While the written contract authorized venue against Crawford in Panola County under exception 5 it did not authorize venue against McCormick in Panola County under exception 5- inasmuch as he was not a party to the written contract. Appellee seeks recovery against Crawford on a written contract executed only by Crawford, and seeks recovery against appellant McCormick on oral agreements and oral assurances allegedly made by McCormick. The relief to which appellee was entitled as against Crawford, the defendant properly suable in Panola County under exception 5, was'a monetary judgment and foreclosure of the mechanic’s lien against the automobile in the possession of Crawford. -This relief could be had by a judgment against Crawford alone. The relief sought against McCormick was a monetary judgment. The absence of McCormick as a party to the suit was no bar to a monetary judgment against Crawford and the foreclosure of the mechanic’s lien against Crawford’s automobile in Crawford’s possession.

We hold that under the authorities here-inbefore cited and under the record in this cause that appellant McCormick was not a necessary party to the suit here under exception 29a to the venue statute.

The judgment of the trial court is reversed and the cause as to defendant-appellant George McCormick, d/b/a McCormick Insurance is ordered transferred to a District Court of Dallas County, Texas.

Reversed and rendered.