Frankfort Distilleries, Inc. v. Burgess

105 S.W.2d 410, 1937 Tex. App. LEXIS 973

Opinion

COMBS, Justice.

This is an appeal from an order of the district court of Nacogdoches county overruling a plea of privilege. The suit is for $750 damages alleged to have resulted from a collision between a truck belonging to the appellee and a car being driven by H. R. Toomey, who was alleged to be the agent of the appellant. The collision occurred three miles from Nacogdoches on a public highway, several acts of negligence being charged in the pleadings.

The judgment of the trial court will have to be reversed because of the failure of the plaintiff to make out a prima facie case on the hearing of the plea. In view of another trial we will not discuss the testimony adduced except to say that the meager proof offered' failed to show, even prima facie, any act of negligence on the part of the defendant.

There was also a failure to establish satisfactorily that Toomey, the alleged agent, was in fact the agent of Frankfort Distilleries, Inc. Inasmuch as it appears that the plaintiff will be able on another hearing to develop her case more fully, we do not order the case transferred, but reverse the judgment of the trial court and remand it for another hearing on the plea of privilege.

Reversed and remanded.