HIGHWAY MOTOR FREIGHT LINES et al. v. SLAUGHTER.
No. 11759.
Court of Civil Appeals of Texas. Dallas.
April 20, 1935.
Rehearing Denied June 8, 1935.
84 S.W.2d 533
LOONEY, Justice.
In the charge the trial court advised the jury what was at issue, and instructed them what was necessary to be found in order for the plaintiff to recover, and under what facts they should return a verdict for the defendants. He further instructed them in the charge: “Now bearing in mind the foregoing instructions, if you find that plaintiff is entitled to recover, then state what amount of money, if any, will reasonably compensate the plaintiff for such damages, if any you have found. Write your verdict here.”
After charging on the credibility of witness, the weight to be given their testimony, etc., the trial court prepared for the jury, at the bottom of the charge and after his official signature, the following: “We, the jury, return our verdict herein as above set forth.” Under these words the signature of the foreman, as such, appears.
In the body of the charge after the words “Write your verdict here,” the jury inserted the figures “$170.00.”
The trial court received this verdict and rendered judgment for appellee against aрpellants jointly and severally for $170.
Appellants filed a motion for a new trial which contains six paragraphs. The first complains that the verdict is contrary to the evidence; the second complains that the jury failed to be governed by the law as submitted in the court‘s charge; the third asserts that any judgment the court may render on the verdict will be contrary to the law given to the jury; the fourth complains of the form of the charge in certain particulars; the fifth complains that the verdict is so indefinite that it cannot be determined therefrom whether the jury found for the plaintiff, or the defendants; the sixth complains of the verdict as excessive.
In appellants’ brief they present four assignments of error, which they treat as propositions of law. They urge these as fundamental errors. Only one of these is remotely related to the assignments of error presented in the motion for a new trial, namely, the last proposition.
We do not find any fundamental error in assignments of error Nos. 1, 2, and 3, and decline to consider them. All of them refer to the manner and form in which the court charged the jury. These errors, if such they be, appellants waived.
The fourth assignment of error is carved out of paragraph 5 of appellants’ motion for a new trial. It is as follows: “Where the court enters judgment for plaintiff, who is appellee here, upon a verdict of the jury which was vague and indefinite, and it is not stated for whom the jury found, whether plaintiff or defendants, judgment so entered upon said verdict, constitutes fundamental error.”
The chаrge of the court is such that the verdict returned thereon by the jury clearly shows that the jury awarded plaintiff $170 damages against the defendants. No other interpretation is deducible or reasonable.
Finding no fundamental error in the record, the judgment of the trial court is affirmed.
Webb & Webb, of Sherman, for appellee.
J. M. Slaughter sued the Highway Motor Freight Lines, the Commercial Standard Insurance Company, and the Lloyds American Insurance Company, domestic corporations. The Lloyds was dismissed; hencе its connection with the suit will not be further noticed.
The action against the Highway Motor Freight Lines was for personal and property damages for injuries sustained in an automobile collision, and the Commercial Standard Insurance Company was joined by reason of its having issued a policy of insurance to the motor carrier under the provision of
Defendants insist that the court erred in admitting in evidence, over their objеction, plaintiff‘s controverting affidavits and original petition. The controverting affidavits referred to, and adopted as a part thereof, the original petition; hence this pleading constituted plaintiff‘s contest and formed the basis for the introduction of evidence as to the existence, whether or not, of the fact or facts relied upon to confer venue of the cause on the district court of Grayson county, but was not evidence of any such fact or facts. Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899, 900; American Fruit Growеrs v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898, 900; Citizens’ State Bank v. Alexander (Tex. Civ. App.) 274 S. W. 184, 185; Johnson v. Dallas, etc., Co., 120 Tex. 27, 34 S.W.(2d) 845, 848. We do not think the contesting affidavits or plaintiff‘s petition should have been admitted as evidence; as pleading, they were before the court without being introduced, and as the evidence adduced thereunder was sufficient to sustain the action of the court, the error in this respect was rendered harmless.
The court also admitted in evidence, over defendants’ objection, a certificate by the Seсretary of State, certifying from the records of his office that the Highway Motor Freight Lines was a domestic corporation chartered July 14, 1932, and had paid the franchise tax due by it up to April 1, 1934. Error is assigned on the action of the court in the respect mentioned, the contention being that the certificate was incompetent for any purpose, and should have been excluded. It is obvious that the certificate was offered to show that the motor carrier was a private corporation, within the meaning of
We overrule this assignment. The certificate, in our opinion, was admissible under
But it is insisted that the court erred in overruling the motor carrier‘s plea of privilege, because no exception was proven, authorizing the maintenance of the suit in any county other than in Dallas county.
In determining the question of venue, the court was compelled to ascertain from plaintiff‘s petition the nature of his cause of action. In American Fruit Growers v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898, 900, Judge Smith, speaking for the San Antonio Court, said: “In most cases two elements are to be considered in determining venue, first the nature of the action, and second, the facts which fix the venue of suits of that nature in a particular county, or, as in some cases, counties.” In rare instances, he said, the quеstion of venue is determined as a matter of law from the nature of the action, and after giving a few illustrations, continued as follows: “The true rule is, as established by the overwhelming weight of
Looking to the petition, we ascertain that plaintiff‘s cause of action against the motor carrier is to recover damages for personal and property injuries received in a collision between one of defendants’ trucks and plaintiff‘s automobile on a public highway in Grayson county, attributed to the negligent operation of the truck by an agent of defendant.
We are not concerned here with the ultimate issues, either as to liability, the extent of injuries sustained, or the resultant damages, except in so far as same may be germane to the question of venue under consideration; our concern at this juncture being simply to determine the court of proper venue, which when ascertained will determine the ultimate issues.
It is true that, uncontested, the sworn plea of privilege, in law, was prima facie evidence that no exception existed authоrizing the maintenance of the suit in any county other than in Dallas; however, plaintiff‘s contest alleged facts which, if true, brought the case under
Assuming, but not deciding, that the sworn plea of privilege has the effect of putting in issue the corporate existence of the motor carrier, within the meaning of
But it is contended that the court erred in admitting, over objection, the testimony of plaintiff to a statement by the truck driver, made after the collision, to the effect that the Highway Motor Freight Lines was owner of the truck in question. After describing the collision, plaintiff said that, immediately after the occurrence, he emerged from his car and the driver from the truck and, at this juncture, in answer to a question, the driver said the truck belonged to the Highway Motor Freight Lines. We think the testimony was admissible as part of the res gestæ, and sufficient to show, at least prima facie, that the truck belonged to the motor carrier, and in connection with other facts and circumstances, sufficient to show the agenсy of the driver. Defendants’ failure to combat this evidence is considered significant. See Bolt v. State Savings Bank (Tex. Civ. App.) 145 S. W. 707; St. Louis S. W. Ry. Co. v. Schuler (Tex. Civ. App.) 102 S. W. 783; Western Union Tel. Co. v. Brown (Tex. Civ. App.) 297 S. W. 267; 10 R. C. L. (subject Evidence) § 166, pp. 984; 985.
In Bolt v. Bank, supra, the court held that the acts and declarations of a person at the time he presented a note for collection, concerning its ownership, were admissible in an action on the note, as a part of the res gestæ. The general rule, supported by numerous authorities, stated in 10 R. C. L., supra, is that: “Declarations as to the ownership of prоperty, made by a person in possession thereof, are admissible in evidence upon an issue as to such ownership as part of the rest gestae. This includes all declarations explaining and characterizing the possession, and showing in what capacity the declarant holds, whether as owner solely or jointly, or as the agent, tenant, or trustee of another, and the like, and when the possession or ownership of the property is under inquiry, such declarations are received as explanatory of the possession * * *” So, we think plaintiff successfully contested the motor carrier‘s plea of privilege, and that the court did not err in overruling the same.
Also, the insurance company insists that the court erred in overruling its plea of privilege, in that no exception to exclusive venue was established authorizing the suit against it in Grayson county.
Whether or not plaintiff‘s petition states a cause of action against the insurance company is a question for determination at the trial of the cause on its merits, and therefore is not now under consideration. In thе case of Grasso v. Cannon Ball, etc., Lines, 81 S.W.(2d) 482, recently decided by Commission A, in an opinion by Judge Critz, approved by the Supreme Court April 3, 1935 (not yet reported [in State Reports]), section 13 of article 911b being under construction, the Commission held that an insurance company issuing a policy under said provision could not properly be joined as a defendant in an action against the motor carrier, and, furthermore, that no cause of action would arise against an insurance company in favor of an injured party until he hаd obtained judgment against the motor carrier. The holding of the Commission, denying the right to make the insurance company a party to a suit against the motor carrier, in effect, denies the existence, under that statute, of an exception to exclusive venue, and if that were the only exception presented by the pleadings and proof, we would be compelled to hold that the trial court erred in overruling the insurance company‘s plea of privilege. The case against the insurаnce company is based on a policy issued to the motor carrier, under which plaintiff claims to be a beneficiary, and as such seeks recovery of damages for personal and property injuries sustained within the terms of the policy. We think the case is within
Plaintiff based his contest of the insurance company‘s plea of privilege on the idea that the statute,
The insurance company also contends that the court erred in admitting in evidence, over objection, the certificate of the secretary of the Railroad Commission, certifying in effect that the records of the office show the filing by the defendant of a policy of insurance, covering the Highway Motor Freight Lines, effective October 19, 1933, and in full force and effect December 6, 1933, the date of the certificate; the contention of defendant being that the certificate was simply hearsay, and not the best evidence. We do not deem it necessary to rule on this assignment, because, as we viеw the question, whether or not the insurance company had issued its policy, as alleged, was a question for determination at the final trial of the cause on its merits, and was not in issue on the trial of the contest of the plea of privilege.
The nature of the case, as against each defendant, was revealed by the petition, and the only issues to be tried on the contest of the plea of privilege were those prescribed by statute; that is, as to the existence, whether or not, of thе “fact or facts relied upon to confer venue of such cause on the court where the cause is pending” (
In harmony with the views herein expressed, we affirm the judgment of the court below.
Affirmed.
In disposing of the motion for rehearing by the Highway Motor Freight Lines, we do not deem it necessary to add anything to our original opinion. The position of the Commercial Standard Insurance Company on rehearing is revealed by the following excerpt from its motion, to wit: “It inevitably follows that Commercial Standard Insurance Company was unlawfully joined in the suit. No possible cause of action was stated against it. The court knows that suit could not be maintained against Commercial Standard Insurance Company in connection with plaintiff‘s cause of action against defendant, Highway Motor Freight Lines, and therefore, the plea of privilege of Commercial Standard Insurance Company should have been sustained.”
We readily agree that, under the rule announced by the Supreme Court in Grasso v. Cannon Ball, etc., Lines, 81 S.W.(2d) 482, referred to in our original opinion, the Commercial Standard Insurance Company was improperly joined, and that the facts alleged рresent, as to it, simply a potential cause of action, but questions as to misjoinder and the sufficiency of the petition are not before us for consideration. The contention is made that, as the court knows the suit cannot be maintained against the Commercial Standard Insurance Company in connection with the Highway Motor Freight Lines, therefore the plea of privilege of the Commercial Standard Insurance Company should have been sustained. We do not think it follows by any means that, because the petition reveals a misjoinder and a potential rather than actual cause of action against the Commercial Standard Insurance Company, that its plea of privilege should have been sustained for either reason. We cannot anticipate and decide those questions on an appeal from an order overruling the plea of privilege. The statute (
In his contesting affidavit, plaintiff referred to and adopted the allegations of the original petition, which reveals the nature of the action against the Commercial Standard Insurance Company. In substance, plaintiff alleged that the insurance company issued its policy of liability insurance to the motor carrier, insuring against liability for damages, etc.; that such insurance was carried by the motor carrier, in obedience to the statutes of the state; and that all persons having a bona fide claim for injury or damage against the motor carrier were privies, having an interest in the insurance contract. Each defendant was sued as a private corporation and venue in Grayson county was claimed under subdivision 23 of article 1995, in that the cause of action arose in that county.
The nature of the cause of action, as revealed by the petition, was not in issue, nor was the exception under which venue was expressly based an issuable fact, being a matter of law plaintiff was not required to allege, but having done so, and erroneously based the claim of venue on a wrong exception, it did not preclude this court from considering exceptions applicable to the facts alleged and proven, and sustaining venue thereunder.
The case of American, etc., Co. v. McClendon, Chief Justice, et al. (Tex. Com. App.) 81 S.W.(2d) 493 (an original application for mandamus), is very similar on the facts to the case at bar, but we think
Since writing this opinion, we have received the advance sheet containing report of case of Farmers’ Seed & Gin Co. v. Brooks (Tex. Com. App.) 81 S.W.(2d) 675, in which Judge Taylor, in an able and exhaustive opinion, approved by the Supreme Court, answering certified questions by the Eastland Court, announced the rule that fully vindicates our contention, holding that, under the statute providing that plaintiff, desiring to resist a plea of privilege, should file a controverting plea setting out the facts relied upon to confer venue on the court where case is pending, and that the issue of venue, not of liability, is raised when the controverting plea is filed.
Therefore, the request that the question of law involved be certified to the Supreme Court is denied, and appellants’ motions for rehearing are overruled.
Overruled.