170 S.W.2d 655 | Tex. App. | 1943
This is an appeal from an order overruling a plea of privilege of the appellant, Edward W. Jordan, to be sued in Tom Green County, and of the appellant; Highway Insurance Underwriters, to be sued in Travis County, the respective residences of appellants. The appellees, A. H. Broad and his two sons, G. S. Broad and Albert H. Broad, Jr., sued appellants and J. B. Rowe in McCulloch County for damages for the conversion of a Dodge pickup automobile and for the alleged reasonable rental value of the same. J. B. Rowe, who resided in McCulloch County, filed a cross action against the Highway Insurance Underwriters for $164.33 for repairs he made upon the automobile, alleged to have been made at the instance and request of the Highway Insurance Underwriters, and for certain charges for storage of the automobile. The insurance company also filed a plea of privilege seeking to remove the cross action of J. B. Rowe to Travis County. Each of the pleas of privilege was controverted and upon a hearing the court overruled the same.
The Broads and Rowe each attempted to maintain the venue in McCulloch County upon the theory that this is a suit for conversion of personal property in McCulloch County and that by virtue of exceptions 4, 9, and 10 of Article 1995, Vernon’s Annotated Civil Statutes, the venue was properly laid in such county.
It appears that the Broads were engaged as partners in selling farm machinery at Brady in McCulloch County. On October 9, 1940, the automobile in question was damaged in a collision with a truck belonging to appellant, Edward W. Jordan, on a highway in San Saba County. Jordan’s truck was covered by liability insurance in the Highway Insurance Underwriters. The Broad automobile was being driven by Len F. Cox who was injured in'the collision and who collected damages from the insurance company in a settlement some three months after the collision. Shortly after the automobile was damaged, it was brought back to Brady in McCulloch County and stored at A. H. Broad’s place of business. The next day the adjuster for the insurance company came to Brady and investigated the damages to the automobile. He obtained the consent
Under the above circumstances, we think it was the duty of the insurance company, immediately upon the completion of the repairs, to pay for the work at the price agreed upon and to see that the automobile was delivered to its rightful owners, and after demand had been made therefor upon Rowe, its agent and joint tort-feasor in the undertaking, the failure to return the automobile, in our judgment, constituted conversion. Jesse French Piano & Organ Co. v. Elliott, Tex.Civ.App., 166 S.W. 29; Roberts v. Yarboro & Wimberly, 41 Tex. 449. It is elementary that where a person has lawfully come into possession of chattels, his subsequent assertion of a right inconsistent with the owner’s general dominion constitutes a conversion. 42 Tex. Jur. 518, sec. 12. It is also well settled that the conversion of personal property is a “trespass” within the meaning of Section 9 of the venue statute. Frankfurt v. Grayson, Tex.Civ.App., 80 S.W.2d 486; Bowers v. Bryant-Link Co., Tex.Com.App., 15 S.W.2d 598; General Motors Acceptance Corporation v. Wilcox, Tex.Civ.App., 95 S.W.2d 1368. Therefore, under exceptions 4 and 9 of Article 1995, the venue as to all of the parties was properly retained in Mc-Culloch County. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.
The judgment is affirmed.