Page v. Kilgore

Berry, Tex.Civ. way Texas & O. R. Co. v. path. N. was free of obstacle in App., Applications In 74 S.W.2d 750. Beaumont, the case of L. & W. S. R. in all three prosecuted Richmond, writs of error were Co. v. refused. We upon by of these cases and all were appellees, stationary relied applications find inspected flat car presented these which eight- an was question under review that the squarely presented here inch surface to obstruct view deci court for -to this objects beyond traveler to the track raised By refusing applications those sion. cases this upon an issue as to it whether or was in put stamp approval ample court itself warning to the traveler. perceive no holding. such We undisputed case it is instant In those cases ground between of distinction feet that for a distance at least 560 nearly are the instant case. So and the spur crossing highway leading to the issue that an same to hold facts the level,, was a the accident occurred which would be raised in this case of fact was obstruc straight, highway, no concrete cases.” in those to overrule the decisions crossing or view of to the tions in the Stratton principles down The laid view, train to south side of Kypher Berry were followed and v. Texas & P. cases Holdings in the Strat- crossing. Under the Co., Tex.Civ.App., 88 R. cases, supra, Compton we must ton 528. that, negligence hold matter of instant appellees contend that the The prox company not the was of the railroad distinguished from the Strat- case must Ike Allen. of the death of imate cause cases, Berry Compton for the ton and is re- court of the trial judgment they introduced evidence on reason fully devel- was versed, the case since jury support the the cause to the trial of ren- court, here judgment oped in that negligent findings favor of dered precautions to warn failing take extra and rendered. Reversed presence the train deceased They crossing. this con base across the testimony largely on the of E. R. tention Wilson, at the time of who approximately 100 the collision car and that he Allen feet behind crossing, the train over the could not see think, which, we upon authorities clearly distinguishable in that in each cited existed an obstruc cases there v. KILGORE. PAGE ordinarily prevent tion which an No. 2580. prudent observing a train in driver from collision, time to have avoided sufficient or Appeals Texas. Waco. Civil might the existence of facts which April 20, an illusion in the mind of the have created the car that the track across the driver Rehearing Denied June although driver, highway, known to the occupied a train. In the case Brack, B. & Louis, M. Tex. Co. of St. Civ.App., 102 was held light fact cars view highway side with a were on either highway, across the evidence dark car suggestion of an illusion which raised authorized to submit the negligence jury. the railroad’s In Missouri, Ry. Kansas & the case of Texas Long, Co. appellees, relied the railroad highway where it crossed track depression might was in have de ignorant a traveler ceived of the fact that was a railroad track there of the at the bottom incline into believing the high White, Taylor Chandler, Austin, & Fitzpatrick Dunnam, Waco, ap- &

pellee. RICE, Chief Justice. appeal This is an overrul- from an order plea

ing a privilege. Plaintiff his right asserted to maintain the suit in County because, McLennan says: (1) the evidence disclosed law, a matter of the defendant estab- residence, lished a purposes, venue County; (2) McLennan suit was based on a crime or offense com- mitted in County. McLennan Subdivision Article Revised Civil 1925. Statutes trial court extensive findings filed fact and conclusions of wherein he found and (1) concluded: that defendant County, was a resident Travis (2) plaintiff’s but that suit was based on crime or offense committed County, McLennan therefore lay county. in said excepted Defendant perfected appeal finding because of trial court’s last conclusion above mentioned and order, thereon, overruling privilege. excepted Plaintiff finding and conclusion of the trial that defendant times relevant this, appeal, resident of Travis County, Texas, and was not a resident of purposes, for venue by cross-assignment presents question thereby of law raised to court for re- We dispose view. will of this first. point Plaintiff’s is that the undis that defendant puted evidence disclosed was a resident purposes. It We overrule this contention. useful re-state serve no to here question. was, It evidence relevant to this think, supported sufficient to against plaintiff finding either for or pleadings. of fact raised Gil issue Graham, Tex.Com.App., mer v. Therefore, this court not author judgment. court’s trial ized to disturb and in connection 106 pleaded Thompson, “each Article R. Co. section of & T. Pecos N. 1995, of the Revised Civil 456, 167 S.W. Statutes Tex. State of together with all amend- position takes Defendant thereto, ments and also Article plea of overruling his in erred trial court each every and section thereof.” had defendant ground that the privilege on a crime in committed plaintiff first trial Thereafter filed his not suit was because, says, plaintiff’s he amendment, alleged per that wherein he he upon a crime, based but was upon a based question for formed labor in the work and provisions the contract, and therefore contemplated by contracts defendant ap- 1995 have no 9 of Article subdivision plication. by with made and entered into defendant United in con Government, States and petition original templation pursuant to Section and his alleged in Plaintiff 40, defendant 325 of Code employ of and Title States United entered he that supervisor Annotated, Public and also Section warehouse capacity in inte* 781, Congress, Approved contract of a Act the terms Number 76th under whereby September 325a], defendant, 9, 1940 U.S.C.A. plaintiff [40 § and between plain- relating compensation He to for overtime. to obligated himself latter the tiff eight day per alleged performance that in $6.66 sum of week; pur- performed that days per his duties for defendant he work six hours nature, worked plaintiff a toilsome agreement manual labor of suant to 1942, March cases, to the contract that the law in such for defendant period by during said entered into that defendant with the hours plaintiff work twelve that required Government plaintiff to States was days per required week and day was not wrork more than per seven be days day per per six eight per day paid eight hours hours in one calendar week; by facts he day of said he that reason on such work unless should be overtime, which per hours for all work in excess paid; and that reason day been had not less than and one-half times in he was entitled pay. pleading of the law such cases basic was rate of This to, sum recover and one-half in the sworn does not make reference $1,783.21. the controverting affidavit. defendant, under was had Service Thereafter, plaintiff filed his “second thereupon pleading, and he foregoing controverting affi- trial amendment to his privilege be seasonably filed his filed wherein he herein”, davit heretofore he resided. where in Travis sued alleges that cause for reason same was plaintiff first amend- Thereupon filed his crime, trespass a offense and again original petition, wherein he ed committed forth, and, pleaded hereinabove set County, Texas, first as set out in his addition, pleaded was that in event he original petition, amended trial his first allegation that had an mistaken in his amendment, original petition, his defendant, express then a on constitutes violation particular “the same governing law defendant, Page, of part Holland plaintiff engaged to for defendant do Sections Penal Provisions of provides paid, there- that he shall so be 324, 325 Unit- 325a Title implied fore had an contract with de- Annotated, Code Amend- ed States paid upon such fendant basis. to be thereto, relating public buildings, ments day filed his first the same On * * * * * * works here referred original petition, his filed amended hereof, part purposes.” a for all and made affidavit, controverting and therein referred duly pleading was verified. This thereof, part pleading his made a mentioned, predicated last above Plaintiff testified his contract of employment maintain this in McLennan with the claim to defendant grounds: (1) employed weekly salary that defend- of $35 legal pur- day residence for ant had and was work twelve hours a seven (2) week; county; days weekly salary poses in said his suit was that his $40; wages per- for labor suit for done and later raised to in from started by plaintiff day, working per defendant at his formed first twelve hours special request day instance and to do for McLennan continued so a misde- guilty be employ- shall deemed of his throughout period week meanor, on convic- weekly punished, and shall ment; on a that he worked ba^is. tion, by imprisonment than not more duty to further testified He look $1,000, six or to exceed parts months fine not keep the records of after and imprisonment. sup- or both such fine and where in the warehouse department plies kept; cars for trucks and 40, provides that Section Title per- employment course of his the United for or on behalf of contract States labor, handling truck very hard formed require employment may springs, trucks and rear ends for shall of laborers or contain mechanics trucks; everything parts for did provision shall no laborer mechanic or was to testified there the do. He further required permitted more time-keepers keep did day, con- than sign that others had night, a card day stipulate per penalty shall a tract of $5 not; quit because he did day that a or mechanic for laborer injured he was accident. in car a required permitted be or shall plaintiff Defendant’s payroll showed day, eight pen- per more than hours such weekly salary, listed clerk as a with a be alties to use withheld for the and benefit 56 a and that he worked a total of hours of the United States. plaintiff undisputed week. It was (b) 1155 of Title of Section Subdivision days day, twelve hours each seven 1940, U.S.C.A.Appendix, 28, 50 Act of June week, or total 84 a a of hours a week. “During reads follows: national as by plaintiff The services emergency rendered to de- the President on declared exist, fendant 8, 1939, were in with the September provisions connection latter’s contract with Government of Unit- law prohibiting eight than of more States day ed' auxiliary flying for an persons the construction of any labor in en- hours’ one of upon by Army, Article of the con- gaged Navy, field. work covered tract, captioned Law, “Eight Over- Hour shall Coast contracts be sus- Guard Compensation Labor,” provides and Convict that the pended.” Section provides substantially 30, 1942, follows: No la- as Act shall terminate unless borer or required mechanic should Congress or provide. shall Section otherwise permitted eight 325a, to work 40, 1940, than passed September more hours Title day per compensated unless provides: all hours in excess' of eight hours than less provision “Notwithstanding any one and one-half times basic rate. It me- every laborer and wages of penalty that a of $5 any or employed by sub- contractor chanic contractor day imposed should be on the contractor performance of engaged in the for each permitted laborer mechanic or or in specified any contract of the character required to eight labor more than a hours title, shall be 324 and 325 of this sections day compensation without receiving day eight hours computed on a basic rate provided for, above penalties such eight per day and work in excess were to withheld for the use and benefit upon compensa- per day permitted shall be the Government, provided that the fore- excess of hours worked in tion going stipulation be subject should in all per day than eight hours at not less respects exceptions provisions pay. one-half times basic rate U.S.C.A., 321, 324, Title Sections T., Title Sept. a. m. E. c. S. 325 and as modified Section 303 of III, 303, 54 Stat. 884.” § Public Act Approved No. September in position takes Defendant 9, 1940,40 325a, U.S.C.A. relating § to com- (b) provisions subdivision view pensation for overtime. 325a, Section set and of Section 40 Ú.S.C.A., 321, Title it unlaw- § made permit above, a a is crime out any ful for require contractor or sub-contractor to more than mechanic to work or laborer permit or a laborer or mechanic Congress per day; upon public a work of the United crime to making it a fail passed no law States than any more hours in cal- a work done laborer overtime day except endar extraordinary in case day; eight hours a by him in excess of emergency. plaintiff’s lacking case is in es- hence 40, provides fact, a showing Section 322, any Title to-wit: sential making the contractor or sub-contractor who inten- in force a statute there tionally any provision violates Section of defendant crime. acts inclined is plaintiff’s suit With this view we dominant However, incorrect we be serv should establish the character agree. plaintiff opinion this, consti ices rendered him to defendant in we are intent the true establish venue tuted him within failed a laborer case sounds plaintiff's in de meaning term used States, upon crime or contract, based the United is not fendant’s contract with entitled, by fore Assuming under the is and that for this reason he offense. contract, statutes, applicable provisions acts defendant’s of said going plaintiff was to be of the law in recover of defendant difference violation laborer, actually paid and defend tween amount mechanic or a either to work permitted him required or been ant the amount he should have paying day there eight hours a without Because excess of laborer under contract. statutes, by overtime, plaintiff’s opinion of these none of, we are of cause terms, vest in upon their suit based aforesaid recovery States, against defendant action between defendant and bottomed penalty. suit is not upon His it is not crime him, pleaded express contract ‘crime’ applicable “To make offense. statute, en testified was the contract he exception nor clause of himself defendant and plaintiff’s petition into between must alleged tered employed, because liability time he was of at the the basis of be one paid him the week admitted that defendant act plaiAtiff defendant or omis is some ly upon. agreed pun This remuneration sion for which liable to defendant is upon the contract into penal entered is bottomed ishment v. under the code.” Thomas States,, 682; the Meyer, Tex.Civ.App., defendant with 168 S.W.2d whereby Hurley the bound Reynolds, defendant himself S. v. overtime mechanics all laborers and W.2d 1018. they of all excess is judgment District Court The of day. plaintiff’s conten hours a It is is here accordingly judgment reversed and tion, pleadings his and as demonstrated plea privilege be and rendered that the testimony, that the work he was re his quired sustained, hereby and or- the same is is perform, per and which he did trans- dered that the cause of action be form, within made a laborer mean ferred District of Travis contract, ing provisions of that of the and by Rule Vernon’s as therefore, terms, he en is Texas Rules of Civil Procedure. titled hour overtime for each he worked in excess Rehearing. On Motion for day. ap- rehearing In an motion for able depends When the venue pellee contends that all the evi since ordinarily suit, such venue is appellant’s nature dence the issue of resi principal determined nature testimony appellant, dence from came right sought for and the relief judicial asserted was a admission and established Life Mutual thereof. Lone Star breach aas matter lawof that at the time Bruno, Tex.Civ.App., 101 v. S.W.2d Ass’n suit, institution of the at time of service 1059; O’Quinn O’Quinn, Tex.Civ.App., v. process, filing at the time and 397; Nunnally Holt, Tex.Civ. S.W.2d privilege, of his was a 933; McGee, App., S.W.2d Bateman v. county, Texas, resident of McLennan 374; Lipscomb purposes, and court erred Rankin, Tex.Civ.App., 139 holding. so Appellee is correct in his statement suit, character con The testimony appellant’s all of as to resi- venue, deter trolling dence came The facts de- of law facts al matter mined veloped by testimony substantially petition. Bank Federal Land leged in the the trial findings set forth in court’s Downs, Tex.Civ.App., 127 Houston v. follows: fact as Thomp Mercantile Co. v. Lee son, Tex.Civ.App., 161 When to the residence of “As allegations plaintiff’s testimony following was introduced: construe the defendant, plaintiff’s Page, pleadings, with the aid testi Mr. thereof, contractor, doing general mony support construction adduced we can a escape prior primary and that some conviction two to three months he went and into and then others stayed as Brownwood and three is now known two or to construct what later about Army Flying months and then April Waco School back to Blackland came Govern- 20th into room hotel he entered contracts with has had at date, since landing at times had two auxiliary and has ment to construct two hotel; rooms at fields in McLennan said maintains rendered all of work was room in em- said construction different towns for different County, ployees, performed engineers in McLennan such as and others thou- at this time that he has sent out special busi- Austin on machinery ness; sands of dollars worth of rooms so he maintained these equipment times county in this and has at that he or his em- certain engaged high thousand em- ployees visiting three would have a room when ployees; jobs he has maintained an office places; at different that he telephone county job on each in this Marfa, Olney two rooms in fields; since began he first here; on said used two also main- rooms appeared and his name also Classi- in the telephones post tained office boxes fied telephone directory, Ads of the Waco job, Bastrop, on each which were located at showing general that he was contractor Temple, Brownwood, Olney, Marfa, Moun- Waco, at Texas. Home, tain Ark. and two at home office Austin, Texas, at the three tele- besides had, “The defendant also testified phones in Waco. prior times since to June post Waco, box at office Page “Mr. testified hearing he had two boxes thirty years and had been for married where he all of mail concern- received live had continued to with his wife con- ing his business for this district. tinuously they since said ’29, 1928 or resi- McLennan since maintained their that in also testified “He Road, dence Travis County Austin, with Government Norwood contracts County, Texas, into, and that he never re- gave he his address he place; Waco, sided envelopes his wife he had and that Austin, he, during lived Texas showing his ‘Holland address: return time he in Waco Page, Contractor, and maintained Box General P.O. Hotel, Waco, room at Roosevelt Texas’, went get we ‘whenever Austin two three times week job job project we have a number like this wife, Waco, while visiting son near requested here her have all our we spend night did not particular mail we said Roosevelt have reference particular Hotel job particular County; or in mailed that his box we there. telephone In we residence is listed some districts in the Austin directory; have three or four mail that while boxes.’ he maintained his Hotel, room at the Roosevelt he would “That the First Na- he maintained in gone high and be leave weeks as three Bank Waco, tional what he at a that he inwas Arkansas in Jan- Account’, ‘Revival used called a uary weeks; three traveled he only buy stamps, pay freight pay and to year; during about miles the last employees discharged, that were fired or pay poll that he their wife both purpose loaning employees for the County, tax and vote in Travis sums small so that such amounts could they property no Mc- own home or immediately, paid but that the rolls on Co., Texas, they their Lennan own job job were made on the and sent and residence in home Texas; Travis office to the Austin se- where social here in curity and other taxes off were taken County only looking for the the checks issued from said office after his contracts is the job back to mailed out on here; thing brought did he job. stay any length Waco come to here shortly “He after he had contract in Mc- time before engaged coming Waco room the County expect Lennan and that did not slept Hotel where lived Roosevelt to remain in McLennan after these kept and that while Waco said hotel finished.” contracts are time the until Blackland room about completed; the authorities our job half then cited in went Based Marfa, Texas, opinion stayed original cit and those hereinafter where testimony of ed, that the hold lawof matter establish as a does at appeal he to this the times relevant McLen purposes for venue residence Field Joy Marshall v. Texas. nan & 731; Bol Co., Tex.Civ.App., 638; Alley, v. ton Tennant, 120 Tex. Printing Co. v. Houston 539, 1089; Bros. Hausman 39 S.W.2d Allen, Tex.Civ.App., Packing Co. v. McDonald, 246; Tex.Civ. Dixon v. Weaver, 884; Caprito App., 130 S.W.2d v. 1043; Agey v. Co., Tex.Civ.App., S. Supply Red Star Boulden, 18 Tex. W.2d Brown 431, 432. Appellee’s rehearing ac- motion

cordingly overruled.

ROSWURM et SINCLAIR PRAIRIE al. OIL CO. et al.

No. 14625. Appeals of Civil of Texas. Fort Worth.

May July 7,

Rehearing Denied

Case Details

Case Name: Page v. Kilgore

Court Name: Court of Appeals of Texas

Date Published: Apr 20, 1944

Citation: 181 S.W.2d 730

Docket Number: No. 2580.

Court Abbreviation: Tex. App.