147 S.W.2d 265 | Tex. App. | 1941
This appeal is from an order overruling the plea of privilege of appellant, J. M. Saladiner, to be sued in Brazos County where he resided. The suit of appellee, Mike Polanco, was for damages for the death of his wife which resulted from a collision of the automobile in which she was riding with the truck of appellant driven by his agent or employe; and by controverting plea appellee sought to and sustained venue in Travis County under Sub. 9 of Art. 1995, which provides that "a suit based upon a * * * trespass may be brought in the county where such * * * trespass was committed."
It is conceded by appellant that the proof was sufficient to sustain venue of the suit in Travis County and he states that "the sole ground of this appeal is that, as a matter of law, the controverting plea filed by (appellee) was insufficient and that (appellant's) general demurrer to the controverting plea should have been sustained." The controverting plea alleged the following acts of negligence: "That the agent of the defendant, Arthur Hearn, was driving said truck belonging to the defendant at the time and place of the accident in Travis County, Texas, in excess of the speed limit of the State of Texas, to-wit, more than 45 miles per hour. That the agent of the defendant failed to keep a proper lookout at the time and place of the collision. That all of the above acts were within the scope of the employment of the agent of the defendant. The agent of the defendant was *266 driving said truck recklessly, carelessly and negligently at the time said accident occurred. That the agent of the defendant was driving said truck at the time and place under all circumstances at a speed in excess of which is reasonably safe and prudent. That the agent of the defendant, acting within the scope of his authority, failed to have proper lights that were visible under normal atmospheric conditions for a distance of 500 feet in front of said vehicle. That the agent of the defendant failed to operate said motor vehicle so as to have the same under control at the time and under the circumstances in question. That the agent of the defendant failed to sound his horn immediately prior to the time of the collision. That the agent of the defendant failed to go around to the left of the motor vehicle in which the plaintiff's wife, now deceased, was riding."
The controverting plea then referred to and adopted portions of plaintiffs' original petition as follows: "That the plaintiffs herein adopt and make a part hereof the plaintiffs' original petition for the purpose of showing the acts of negligence on the part of the defendant and his agent at the time of said accident showing that the same was trespass within view of Article
We regard this case as being controlled by the cases of A. H. Belo Corporation v. Blanton,
Since the facts showed venue of the suit in Travis County, we reverse the order of the trial court appealed from and remand the cause in order that appellee may amend his controverting affidavit so as to comply with the rule announced by the Supreme Court in the cases herein cited.
Reversed and remanded.