217 S.W.2d 422 | Tex. App. | 1949
J. E. Newsom and Providence Washington Insurance Company sued Faye Anders, a resident of Jones County, in Stephens *423 County for damages caused by a collision of Anders' truck with Newsom's automobile in Stephens County. The only reference to the insurance company in plaintiff's petition, other than naming it as one of the plaintiffs in the first paragraph, and in the prayer, is found in paragraph 8, where it is alleged that said insurance company, prior to the collision, insured Newsom's automobile against damage by collision, and, after the collision, paid to Newsom $159.70 of the $209.70 "cost of repairing said automobile" and that Newsom had assigned to the insurance company "an interest in the amount of $159.70 in and to the claim for damages, the basis of this suit" and that said company had become "subrogated to all of the rights of * * * Newsom to the amount of $159.70 of the amount of recovery against the defendant Faye Anders." Anders filed a plea of privilege asserting a right to be sued in Jones County. Newsom filed a controverting affidavit in which it was, in substance, alleged that McGuire committed a trespass in Stephens County; that he was then an employee and agent of Anders, and that he was acting in the course of his employment by Anders when he negligently drove Anders' pick-up truck at a speed of 70 miles an hour to his left across the center line of the highway onto the side on which Newsom was driving his automobile and struck Newsom's automobile in Stephens County; that, therefore, the cause was maintainable in Stephens County, under Exception 9, Art. 1995, Vernon's Ann.Civ.St., because McGuire thereby committed a trespass in Stephens County for which Anders was responsible. Trial was to the court; judgment was rendered overruling Anders' plea of privilege and he has appealed.
The evidence was sufficient to sustain a presumed finding in accord with the allegations mentioned. See McGriff v. Hazle, Tex. Civ. App.
Appellant contends that, in any event, the cause of action asserted by the insurance company should be transferred to Jones County because it filed no controverting plea. In their petition, the parties plaintiffs (Newsom and the insurance company) were usually referred to in the singular as "plaintiff." The same is true as to the controverting affidavit. The controverting affidavit made plaintiff's petition a part thereof. In the petition, the insurance company was named as a plaintiff along with Newsom and the insurance company's interest in the cause of action was alleged in the manner heretofore stated. The controverting affidavit was signed by the same counsel who signed the petition as attorney for both Newsom and the insurance company. It was not required that some official of the insurance company verify the controverting plea for the plea to enure to its benefit. It is not necessary that a controverting plea be signed by or sworn to by all the plaintiffs. Pounds v. Marler, Tex. Civ. App.
There was no exception to the controverting affidavit, nor objection to any testimony or proceeding in the trial court pointing out such omission. See Buchanan v. Jean,
In Farrell v. Lawrence, Tex. Civ. App.
Texas Rules of Civil Procedure, rule 90 provides, in part:
"* * * Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court * * * before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account * * *."
In Robinson v. Glasse, Tex. Civ. App.
In Kerin v. Jones, Tex. Civ. App.
In Texas Osage Co-op Royalty Pool v. Kemper, Tex. Civ. App.
In Tew v. Griffith, Tex. Civ. App.
In Hill v. Hill, Tex. Civ. App.
We think it is clear that appellant waived the defect in the controverting affidavit.
The judgment is affirmed. *425