120 S.W.2d 619 | Tex. App. | 1938
Appeal is from an interlocutory decree overruling appellant's plea of privilege to be sued in Bexar County. Appellant is a corporation domiciled in Bexar County, and engaged in operating a truck line between San Antonio, Texas, and Austin, Texas, over State Highway No. 2. Suit was for damages by appellees against J. L. Walker and appellant growing out of a collision between two automobiles, one driven by Benno Arnold and the other by J. L. Walker, on State Highway No. 2 near the city of New Braunfels, in Comal County, on Sunday night, December 1, 1935. It was alleged that Walker was vice-president and general manager of appellant corporation and acting in the course of his employment at the time of said collision; that same constituted a trespass within the provisions of Sub. 9 of Art. 1995, R.S. 1925, which occurred in Comal County. Only the corporation filed a plea of privilege, which was duly controverted, a hearing had thereon, and same overruled; hence this appeal.
In the last analysis, only one question is here presented; i. e., whether there was sufficient evidence before the court to show "venue facts" authorizing the suit as to the corporation in Comal County under Sub. 9 of Art. 1995. Walker filed no plea of privilege to be sued in Bexar County, the county of his residence. As to him, "venue facts" constituting a trespass in Comal County were clearly shown. We do not understand that appellees assert venue in Comal County against appellant under Sub. 23 of Art. 1995. The corporation maintained no agency there.
It is the view of the majority of the court that when plaintiffs showed upon the hearing of the plea of privilege that a trespass within the meaning of Sub. 9 of Art. 1995, had been committed against the plaintiffs in Comal County; and that Walker, who committed it, was an employee of the corporation sued, they met the requirements of the venue statute authorizing such suit to be brought in that county; and that the issue as to whether or not he was at the time acting within the scope of his employment, and whether or not appellant was liable for his tort, was a matter to be determined upon the merits, and not a "venue fact" necessary to be proven upon the plea to the venue. The majority is of the opinion that the cases of Bradley v. Bank,
The Bradley and Brooks Cases, supra, are cases involving Sub. 5 of Art. 1995, relating to contracts in writing performable where suit was brought, and in the writer's opinion do not afford an analogy to the question here presented under Sub. 9 of said Article. Manifestly when plaintiff shows that the defendant has contracted in writing to perform an obligation in the county where suit is brought, he has established the "venue facts" within exception 5, Vernon's Ann.Civ.St., without the necessity of showing a breach, or a cause of action under the other terms of the contract. In such case, execution of such contract being proven, the place of performance is the ground of venue, and not whether the defendant has or has not performed such contract. And this might be true in a suit to reform, rescind or modify such contract, whether breached or not.
The American Publishing Company Case was one involving libel and slander under Sub. 29 of said Article which expressly limits the venue in such cases to the counties indicated in the statute.
The exact issue here presented has never been passed upon by the Supreme Court. It is well settled, however, that the right of a defendant to be sued in the county of his residence is a valuable right, and to authorize a suit elsewhere the plaintiff, as against a plea of privilege, must bring his cause of action clearly within one of the *621
exceptions under Art. 1995. Further, that such venue facts authorizing suit elsewhere than in the county of his domicile are referable to the provisions of the particular exception under which such venue is laid. Subdivision 9, here involved, and Subdivision 7, Vernon's Ann.Civ.St. (a suit predicated upon fraud), have been considered by the Supreme Court as being closely analogous in determining the venue issue. See Compton v. Elliott,
The writer thinks that there is necessarily involved in the holdings of the Supreme Court that the plaintiff on a venue hearing must prove the "essential elements of fraud," equally applicable to an issue of offense, crime, or trespass, the necessary inference that such burden must be met as to the defendant who challenges the venue by a proper plea of privilege. Manifestly a corporation can act only through its agents or employes. An "essential element" of a cause of action against it, therefore, necessary to be shown, would be that when such agent or employe committed such tort or trespass, he was in some binding capacity representing his employer; or at least that there be competent evidence adduced on the venue hearing raising that fact issue. Waco Cotton Oil Mill v. Walker, Tex. Civ. App.
In the instant case the only competent evidence offered by plaintiffs was that Walker was an employe of the corporation and that he was driving a car registered in the name of the corporation in the early part of 1935. These facts, taken alone and not controverted, would have been sufficient to raise a presumption that Walker was acting within the scope of his employment. But the uncontroverted evidence introduced by appellant showed that the corporation had sold and had executed and delivered to Walker a bill of sale in writing to said car, in July, 1935; that Walker was paying for it in payments of $5 per week; and that on the day in question, being Sunday, he had come to Austin in company with a young lady, on an entirely personal mission, social in nature, in no way related to the scope of his employment nor to the business of the corporation. Consequently, as stated by Judge Alexander in Houston News Co. v. Shavers, Tex. Civ. App.
An essential element of a cause of action against a corporation, which can act only through its agents or employes, is to show that the act of the agent at the time was done under such circumstances as to at least raise a fact issue as to whether the corporation was liable. And where the evidence introduced at the venue hearing not only wholly fails to show any liability on the part of the corporation for the tort of one of its employes, but affirmatively shows the contrary, the writer is of the opinion that plaintiffs wholly failed to prove the venue facts essential to sustain venue in the county where the suit was filed.
While, as above stated, this exact question has never been determined by the Supreme Court, it has been passed upon by at least four of the courts of civil appeals, contrary to the majority holding herein, and with which decisions the majority holding is in conflict. The exact question was before the San Antonio Court of Civil Appeals in John F. Camp Drilling Co. v. Steele,
For the reasons stated, I respectfully dissent from the opinion of my associates and am of the opinion that the judgment of the trial court should be reversed with instructions that appellant's plea of privilege be sustained and the cause as to it transferred to the District Court of Bexar County, Texas.
Affirmed.