*1 purpose the statute very purpose statute. It was the and his give protection an automobile added host-driver guests. nonpaying enact- against Before the suits insurer negligence a de- statute, ordinary contributory ment App., Milheiser, Tex. Civ. Murphy to such fense suits. held that because it were now 2d refused. If S.W. writ longer effect of the statute defense the no the statute is very vital and valuable away from the host would be to take holding would protection had. he theretofore Such measure of spirit wholly of the statute. inconsistent with the affirmed in- judgment Court of Civil plaintiffs judgment but sofar it reverses the trial court’s nothing plaintiffs and that judgment rendered that take here all courts. defendant recover all costs in February Opinion delivered sitting.
Associate Justice Wilson Rehearing 26, 1953. overruled March Murray al et al W. O. et
Sam Gann February 27, 1952. No. A-3315. Decided Rehearing March overruled (246 W., Series, 616.) *2 Murray Murray, Floresville, Lieck, & and Charles J. Antonio, San for relators. Wright Hardy, Carl Antonio, Johnson and Nat L. of San for
respondents. Mr. Justice Wilson opinion delivered the Court. prpoceeding This is a compel mandamus certification of questions involving venue Sec. Art. R. C. S. Our jurisdiction is invoked conflict between the Appeals opinion Court bar, in the case at 240 S. W. 2d. Hurley Reynolds, 2d. S. W. parties will be referred to as trial court. damages Plaintiffs resulting sued for personal injuries and death caused when their car ran into defendants’ truck parked night highway. at They beside a that defendants failed to required have flares the parked distance from the truck They al Art. Penal Code. 9-a filed discuss. Defendant need not we leged offense which another privilege were sustained
pleas of appeal. on affirmed action has been whose and, conflict there is a determine whether We must conflict, law. determine the of a in the event opinion are in conflict because cases hold that the two We retain at holds that in the case bar under attack 9, where the suit is based suit under Sec. venue necessary for him to upon a it Hurley proximately The case of caused the crime. contrary Reynolds, supra, holds to the proximately *3 injuries caused plaintiff prove were to that his crime. the although plead plaintiffs problem is here because This raised have injuries failure to that their were the result defendants’ distance, statutory the parked out from the the flares vehicle found, 80 proof, court on that flares were out a distance trial 827a) (instead 9-a, required by Art. feet feet as Sec. moonlight (straight under road and circumstances level night) approaching in a from the rear could be seen vehicle plenty hitting parked of time to avoid truck. The trial finding proximately then made fact a that the privi- pleas caused lege and sustained the offenses change county. to the venue to defendants’ home venue, exceptions general As one on of the to statute crime, 9, (2) provides upon that where a suit is “based a * * * * ** (1) any truck, during period shall from Sec. 9-a. “Whenever sunrise, any hour hour and at other one-half after sunset to one-half before clearly any person light time when is not sufficient to render discernible highway feet, stopped upon (200) on the at a distance of two hundred be minutes, portion any long highway main traveled in this as as fifteen State for operator signal highway place warning upon or on the driver a thereof shall roadway vehicle, one side at a distance not less than hundred fifty feet, feet, parked (200) (150) vehicle nor more than two hundred from such edge may ap roadway every near in from which a direction vehicle ** * proach; flare, placed in such and said reflector shall be electrical devise or way any plainly signal approaching a as be as observed the driver (500) for a vehicle distance of five hundred feet.” (2) person Art. be sued 1995. “No who of this state shall is inhabitant county following except out of the which he has his domicile cases: * * * * may crime, trespass. trespass “9. Crime or or offense —A may brought trespass” county offense bé where the Elliott, crime is committed. In the case of v. 126 Texas 88 S. W. 2d. this Court said: plead venus “The facts which a exception offense, trespass under 9 are that in fact committed and that it was committed in the pending.” where the suit is discussing trespass
Some of the
in this act
cases
the word
bring
hearing
by holding proximate
cause into venue
trespass.
cause to be an element of the definition of
See Heard
Kuhnert, CCA,
pass upon
be whether committed county p. in the where or was agent representative, or defendant his in 1947, Leg., where the defendant has his domicile. As amended Acts 50th 739, 366, ch. Sec. 1.” (3) Wharton, Law, 1, Chap. VII, Marshall, Crimes, Criminal Vol. Clark and 3; Sayre, Chap. Rea, 974; Perkins, Mens 45 Harvard Law Review Rationale A Rea, Review, 905; Neg Greene, Mens 52 Harvard Law Proximate Cause in Texas ligence Law, Review, 471, 755; 621, Carpenter, cause, 28 Texas Law Proximate 14 1, 115, State, 416; App. Southern California Law Review Anderson v. 27 Texas 177, 33; State, 154, Rep. 100, 11 S. W. Blalock v. 40 Texas Crim. 49 S.W. Gorden State, 636; Outley State, 95; Worley State, v. 90 S. W. v. 99 S. W. v. Texas 89 Rep. 393, 391; State, Rep. Crim 231 W. Brown v. 103 S. Texas Crim. 279 837; State, Rep. 159, 1008; S. State, Lahue W. 51 Texas Crim. 101 S. W. Noble v. Rep. 436, 281; State, 54 Texas Crim. 113 S. W. Texas Holland 55 Crim. Rep. 27, 48; State, Rep. 115 S. W. Combs v. 52 Texas Crim. S. 649 108 W. (4) This case arose from an accident. The was under automobile conviction killing by the second count in the indictment for a mis- accident and operation following excerpts take from several trate the of an automobile while intoxicated. paragraphs (taken transcript) charge of the court’s illus- approach to causation:
134 rights charge fully protected
"The trial court his required causal connection be- appellant to the reference with Also, par- collision. and the tween the intoxication driving in Harris in act of facts with reference ticular expressly required to be appellant’s automobile front bringing negatived the col- about as the sole causal factor lision. charge, given, agree ac- are constrained to “We rights that were appellant and those
corded full defensive accident.’ to as an ‘unavoidable due him under what is referred given terms, to the the definition “It must be remembered that negligence,’ ‘contributory ‘unavoidable cause,’ ‘proximate cases, apply accident,’ applied to civil does as known to cases.” to criminal Long State, appeal second 229 2d. on W.
See S. 366. 2d.W. proximate cause is an ele- Therefore it cannot be said that ment the definition of crime. determining supra, is neither neces- venue under it Sec.
sary his entire nor desirable that be re- upon, By words cause of action. the use of the injury and the quires suffered a causal between the connection * * ** * * *, intoxicated, “Now, you while the defendant if believe * * * * * * * * * * * * automobile, highway public and did did drive * * * * * * Harris, by driving through into kill Mrs. F. G. mistake and accident thereby Harris, occupied therewith Mrs. G. the said F. an automobile causing defendant, con- driven the said that said automobile so her death and * ** you use, deadly weapon, sidering said will find manner of its in- guilty under the second count of murder without malice defendant ** dictment, * * * guilty, would not the defendant “You are further instructed that place operated manner in the if automobile was at said time and said defendant’s operated by the influence not under one not intoxicated or should be *5 liquor.” intoxicating * * * * * * * * * “* * * defendant, you though did that Even believe * * * * * * * * * * * * * * * * * * intoxicated automobile he drive while * * * Harris, occupied by Mrs. F. G. the said collide with automobile you you evi- cannot unless further find convict the defendant * * * * * * * * * contributed that intoxication caused collision dence (5) hearing committed, this determined on a venue crime but pleadings. If determined as it can a matter of law from pleadings of the that the crime matter of law from the face proximate it cause of the would was not the alleged. upon” plaintiffs’ crime follow is not that “based injury not The causal connection between the crime and Elliott, supra. requiring proof. fact” “venue against protection 9 offers defendant no unfounded factual allegations that cause of the was the 633, Stockyards Maples,
In Bank Nat. 127 Texas 1300, S. 2dW. this Court said:
“* * * provisions statutory privilege The as to the defendant’s privilege plea protect and the intended to defendants from unfounded suits.” have
We considered well-reasoned case of Thomas v. Meyer, CCA 168 S. W. 2d. but have concluded that point correctly on the cause it is not decided.. argument Legislature changed that the the act this has since weight construction was announced has where the is in no case Appeals during conflict with decision another Court might Legislature. when it time have been considered deciding 3 In expressly this case the Court of Civil stated it purposes opinion that assumed for the of its that an
had been under a valid statute. Our same, causing or was a causal factor the death of the said Mrs. F. G. * * Harris, 12-A. charged “You are that if F. G. Harris drove his Model A Ford car out on * * * highway approaching in front of the automobile of defendant in such * ** intoxication, that did not contribute or was not a causal factor ** * * you acquit the collision will *.” apparent danger causing “To constitute offense there must be person proper death of the killed or some other. The want of care and caution distinguishes degree this offense from excusable homicide. The of care and caution ordinary prudence is such as a man of would use under like circumstances. To bring negligent degree, the offense within the definition of homicide second apparent conseqeunce must be no intention to kill. The homicide must be the attempted of the act done or to be done.” Sproles Copeland, CCA 67 W. was held only fact the entire civil cause of action included not the crime but finding also a negligence proximately the commission of the crime was damages keep being upon” did not in itself the suit from “based a crime though even negligence. it was at the same time a of action cause *6 answering type proceeding is limited
jurisdiction of requested certified. very We do question either certified or filed in the record or the briefs either not have us before proceeding may any Appeals. mandamus of Civil Court Appeals did not reach questions of Civil Court law, to consider which it will need under its but view question. Therefore, the certified after this Court has answered 6701-d, re- Art. 137 of V.A.C.S. we not decide whether Sec. do expressly Code, refrain peals and we Art. al- passing upon question whether an offense so, leged bar, proved if at whether or case upon” this pleadings plaintiffs’ is “based establish that suit offense. plaintiffs follows:
The wish certified is as ap- pleas privilege filed trial on the “When Keith, appellants Raymond Ben E. pellees, Earl Mabra and County, Texas, by crimes in commission of two Wilson acting Mabra, appellee, Raymond Earl while the course Keith, employment appellee, E. for said Ben both of which of his law, negligence a matter of was it for crimes appellants prove proxi- one of such crimes was the that at least in order to establish venue Wil- mate cause their Texas, Exception County, 9 Article son under Vernon’s Annotated Statutes of Texas?” negative. in the Plaintiffs were 4 This is answered in fact “that committed crime county pending.” that it in the where the suit is was committed Elliott, supra. pleadings as a mat- will determine The purposes their ter of law for of venue whether or not that crime. Ap- 475, T.R.C.P., of Civil Under Rule the Honorable Court peals Supreme District Texas is di- Fourth Judicial ruling opinion. rected to conform and decision to this Costs its against respondents. are taxed
Opinion February delivered dissenting. Sharp, Mr. Justice suit, County. injury a personal filed in The This is Wilson 9 of Article Vernon’s venue thereof was based Section petition relators’ filed in the trial Annotated Civil Statutes. provisions violations Section 9a certain *7 Texas, Penal Code of Vernon’s Annotated and of article 6701d, Annotated Civil 121 of Article Vernon’s Statutes Section alleged to have constituted of acts was Texas. Each said of negligence” “proximate a cause” and to be of relators’ “act of court, respondents in are injuries. who The defendants privilege, the here, plea and trial court heard the filed a of evi- plea, ordered the and the suit transferred and sustained dence findings County. filed and The trial court of fact con- to Tarrant proximate law, “that the sole cause and held of of the clusions of pickup the failure the driver of said question in was collision striking said trailer.” and avoid to see Appeals judgment Civil sustained the Court of
The plea privi- suit was filed and time this court. At the trial precise sustained, question presented here, lege that in connection with the could proximate cause suit not be con- upon question, passing passed venue had in sidered been upon the trial court this That and Court of Court. assuming amply justified in that proximate cause could be considered connection with the venue by many Meyer, decisions. See is shown Thomas v. 168 681; Stinnett, 644; 2d Bates v. 170 S. 2d S. W. W. Braslau v. 780; McCrary, 1005; Moon, 2d 192 Grimes v. 211 S. W. S. 2dW. Service, Remedial v. Well 233 897; Gunstream Oil S. 2dW. 241; Buster, v. 226 2d Nichols, S. W. Yearwood v. Wash 230 313; Germany, 2d 231 S. Simmons v. S. 2dW. W. majority opinion Hurley upon Reynolds, v. 157 App., Compton Elliott, 2d Tex. Civ. and cities S. W. v. 126 88 W. 2d to sustain Texas the decision in this case. Hurley 9 of Article 1995 construed in Reynolds, Section held and in that case was in order fix venue in the county committed, where the crime or offense was it was trespass, essential “that any, offense or if upon was, fact, which the suit is based Many committed.” Hurley cases have decided Reynolds. been since decision opinion, now, approval until That was never cited with showing given As Court. the construction Section 9 of Article by many courts, quote 1995 Meyer, we Thomas v. 681, 686, following; 2d S. W. “The character applicability and exception being established, thus plead the burden then devolves (in the con- troverting affidavit) prove (by preponderance of the evi- dence) (1) committed, crime or offense was in (2) fact asserting (the party privilege) prin the defendant as (3) cipal, accomplice accessory, Code, defined sought maintained, in the wherein venue is to be there is casual connection between the act omission constituting injuries (as plaintiff’s in the case and the Kuhnert, App., a trespass. Heard Tex. Heard & Civ. 817, 819).” S. W. question of cause was undisputed that It Independent passed v. Elliott. nor involved cause, it is that a crime or the issue fix venue in the in order to must be offense county *8 or offense was committed. This record crime such where offense, by a crime Section 9 that to show
fails County. This was committed Wilson Court of Article compel by proceedings to of upon the Court mandamus called something merely by certify assumed that court Appeals to Civil reaching decision, purpose a that relators the of for the County. quite It is manifest of two crimes Wilson commission Ap- and of that trial court the Court Civil from the record the crime had been committed peals did not find that an offense or proximate independent issue of cause. Based of the question, assumption majority opinion and di- answers the ruling Appeals to de- of conform its and rects the Court Civil majority opinion. with the It will be noted that relators cision crimes committed in Wilson that two different were violating County by provisions Article of Section 9a of 827a Texas, of and Section 121 of Vernon's Annotated Code of Vernon’s Annotated Texas. of Article 6701d Civil Statutes of Appeals Respondents in the Court of Civil contended that wholly plea privilege of relators trial court sustained because any which crime was committed rela- failed to that liability. Respondents action for civil also base an could tors a to hold that there was violation Section 9a contended crime, defines a would have been neces- which Article of Article 6701d was unconstitu- sary hold that Section by repealed Article tional, Section 9a of 827a was not and that Traffic Code. passage of the Uniform not, accompanied pleadings parties record This findings introduced, only excerpts from the the evidence pre- of law filed the trial court are conclusions fact and finding Appeals did not make a fact Court sented. violations of the Penal Code which constituted meaning within the Section of Article That crimes finding court, which position took the court amply supported by challenged, was the evi- not dence, acts Mabra did not constitute effect that to the correct; accident, was and that proximate the sole a cause of proximate was the failure of the driver of cause of accident large hitting same, avoid pickup see the truck and truck to and that causal connection between crime and proved by plain- fact to relators’ be tiff. proceedings
This Court should not mandamus com- be pelled positively to answer that has been estab- Appeals. lished the trial court and Court of Civil Since the trial court and the of Civil Court believed that the issue must considered in cause be connection with the offense or if this Court holds that cause should considered, so then the should be remanded to Appeals, the Court of Civil for that determine from the respondents evidence and the record whether the had committed County, fixing offense before Wilson the venue county. in that incomplete. The record comes to this Court Be- parties fore can proceedings, resort to mandamus they must positive present have and clear-cut issue to to this Court for This record, decision. is not disagree furnished and I majority’s with the compels decision which the Court of Civil *9 ruling to conform its and decision majority’s to the answer to a yet basis for which has not been estab- lished Appeals. court and the Court of Civil In my opinion, by answering proceed- under mandamus ings time, at this there will be established unusual and er- precedent roneous for this Court to follow the future. Opinion February 27, delivered 1952.
Rehearing overruled March
City Etheridge of Galveston Hill et al January 16,
No. A-3320. Decided Rehearing April 2, 1952. overruled (246 W., Series, 860.)