Appellee E. B. Kincaid, for himself and as next friend for E. B. Kincaid, Jr., joined by his wife, Lucille Kincaid, brought this suit against the Humble Pipe Line Company for damages occurring to each of these appellees, by reason of injuries sustained as a result of a collision between a truck operated by appellant's employe and an automobile owned and driven by E. B. Kincaid, and in which automobile Lucille Kincaid and E. B. Kincaid, Jr., were riding at the time of the collision.
Appellees alleged in their joint petition that E. B. Kincaid was damaged in the sum of $8,233.44, that Lucille Kincaid was damaged in the sum of $10,000, and E. B. Kincaid, Jr., in the sum of $10,000. They alleged that their damages were caused by the negligent driving of the appellant's truck, as follows:
"(a) Because said truck was driven without sufficient lights.
"(b) Because said truck was driven at a reckless rate of speed.
"(c) Because said truck was driven down the middle of the road without sufficient room to permit vehicles to pass.
"(d) Because the driver did not apply his brakes in time to stop the truck.
"(e) Because appellant's driver did not drive on his right hand side of the road."
Each appellee also alleged his particular damages and prayed for his own relief.
Appellant promptly filed its plea of privilege, alleging its place of residence or domicile was in Bexar county, and that it had no agent in Uvalde county, the county in which the suit was brought. Appellant's plea of privilege was filed on March 24, 1928, and on March 29, 1928, appellees filed their controverting affidavit. The court set the hearing of the plea of privilege at Uvalde, Tex., at 2 o'clock p. m. April 12, 1928.
The controverting plea, with the notice of the hearing, was served on T. M. West, one of the attorneys of record for appellant, on April 3, 1928. At the time set for the hearing, the parties appeared before the court, by their attorneys, and appellant did not urge any objection as to the sufficiency of the notice served upon it in connection with the matter of the plea of privilege, but no hearing was had upon the plea of privilege at this time, as it was agreed by the attorneys for appellant and appellees that the matter of hearing upon appellant's plea of privilege should be continued, without prejudice to said plea, to the next succeeding term of the district court of Uvalde county; and said hearing was thereupon by the court continued.
On the 15th day of October, 1928, being the next succeeding term of court, appellant's plea of privilege and appellees' controverting plea were heard by the court, and, after hearing the evidence, appellant's plea was overruled.
No objection or protest was made by appellant on the 12th day of April, 1928, at the action of the court in recognizing the agreement of counsel to the postponement of the hearing on the plea. Nor was there any objection made by appellant, on October 15, 1928, when the cause was called for hearing, to the sufficiency or manner of service upon it of the controverting plea and notice of the time for hearing the said plea of privilege on April 12, 1928, the day first named for the hearing of the plea.
Notice the statute (Rev.St. 1925) article 2008: A hearing shall not be had "until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon."
The only purpose of this statute is to give 10 days' notice of the hearing of the plea to the defendant. When that is done, the provisions of the statute are complied with. It is undisputed that notice "for at least ten days exclusive of the day of service and the date of hearing" was given. Here the parties agreed for a hearing to be had at the next term of court, which was done.
Really, it was not necessary in this case to file a controverting affidavit to reply to appellant's plea of privilege, nor was it necessary to serve any character of notice of a contest. The trial court could have properly overruled the plea without statutory notice upon the filing by appellee of any appropriate plea challenging, as was done in this case, the ground set out.
The appellees resided in Uvalde county, where the alleged tort occurred.
In the case of Yates et al. v. State (Tex.Civ.App.) 3 S.W.2d 114, the court holds: "It is true that some early cases by the Courts of Civil Appeals held that, unless plaintiff controverted a plea of privilege under oath and within the time allowed by the statute, the Court was without jurisdiction to even determine the sufficiency of the plea of privilege, and must transfer the case; but recent decisions by all the Courts overrule those
cases, and hold that, unless plaintiff shall controvert the plea of privilege within the time prescribed, and as directed by the statute and under oath, the Court is without further jurisdiction over defendant on the venue question, except to hear the plea of privilege, and, if it is found sufficient as required by the statute, to transfer the cause in accordance therewith. So it is clear, under the recent decisions cited by Appellants, supra, that the law is now settled that the trial court must hear and determine, not only whether the plea of privilege is in due form and timely filed, but must also determine, where the issue is raised by some authorized pleading, the legal sufficiency of the plea of privilege as tested by the law controlling the venue of the particular kind or character of suit pending; that is, where the legal sufficiency of a plea of privilege is contested by appropriate pleadings, such as a demurrer thereto, and the issue or question raised is one determinable solely from the allegations of the plea itself and from the allegations of plaintiff's petition as to the nature, kind, or character of suit pending, the issue or question so raised is therefore one of law, which the Court has jurisdiction to determine, even though no controverting plea as required by the statute be filed to the plea of privilege. In other words, the matters or things which the statute requires to be controverted under oath in a plea of privilege are the matters or things of fact alleged, and not the issues or questions of law raised by the undisputed facts alleged, or facts which are shown by the plaintiff's pleadings to be untrue.
A suit for tort or trespass may be brought in the county where committed. Rev.St. 1925, art. 1995, § 9; Campbell et al. v. Wylie et al. (Tex.Civ.App.) 212 S.W. 980; Chatham Machinery Co. v. Smith (Tex.Civ.App.) 44 S.W. 592: Aldridge v. Webb, 92 Tex. 122, 46 S.W. 224.
However, the important question arising here grows out of the demand that notice of the hearing had not been served "at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon." Appellant not only had ten days' notice, but several months' notice, before the court heard such plea of privilege and entered judgment thereon.
When the case was first called for a hearing, on April 12, 1928, all the parties agreed that the hearing of the plea of privilege be postponed, without prejudice, to the next term of court, and it was. Appellant has not only had all the notice provided for, but it has waived all claims to further notice.
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Appellee E. B. Kincaid, for himself and as next friend for E. B. Kincaid, Jr., joined by his wife, Lucille Kincaid, brought this suit against the Humble Pipe Line Company for damages occurring to each of these appellees, by reason of injuries sustained as a result of a collision between a truck operated by appellant's employe and an automobile owned and driven by E. B. Kincaid, and in which automobile Lucille Kincaid and E. B. Kincaid, Jr., were riding at the time of the collision.
Appellees alleged in their joint petition that E. B. Kincaid was damaged in the sum of $8,233.44, that Lucille Kincaid was damaged in the sum of $10,000, and E. B. Kincaid, Jr., in the sum of $10,000. They alleged that their damages were caused by the negligent driving of the appellant's truck, as follows:
"(a) Because said truck was driven without sufficient lights.
"(b) Because said truck was driven at a reckless rate of speed.
"(c) Because said truck was driven down the middle of the road without sufficient room to permit vehicles to pass.
"(d) Because the driver did not apply his brakes in time to stop the truck.
"(e) Because appellant's driver did not drive on his right hand side of the road."
Each appellee also alleged his particular damages and prayed for his own relief.
Appellant promptly filed its plea of privilege, alleging its place of residence or domicile was in Bexar county, and that it had no agent in Uvalde county, the county in which the suit was brought. Appellant's plea of privilege was filed on March 24, 1928, and on March 29, 1928, appellees filed their controverting affidavit. The court set the hearing of the plea of privilege at Uvalde, Tex., at 2 o'clock p. m. April 12, 1928.
The controverting plea, with the notice of the hearing, was served on T. M. West, one of the attorneys of record for appellant, on April 3, 1928. At the time set for the hearing, the parties appeared before the court, by their attorneys, and appellant did not urge any objection as to the sufficiency of the notice served upon it in connection with the matter of the plea of privilege, but no hearing was had upon the plea of privilege at this time, as it was agreed by the attorneys for appellant and appellees that the matter of hearing upon appellant's plea of privilege should be continued, without prejudice to said plea, to the next succeeding term of the district court of Uvalde county; and said hearing was thereupon by the court continued.
On the 15th day of October, 1928, being the next succeeding term of court, appellant's plea of privilege and appellees' controverting plea were heard by the court, and, after hearing the evidence, appellant's plea was overruled.
No objection or protest was made by appellant on the 12th day of April, 1928, at the action of the court in recognizing the agreement of counsel to the postponement of the hearing on the plea. Nor was there any objection made by appellant, on October 15, 1928, when the cause was called for hearing, to the sufficiency or manner of service upon it of the controverting plea and notice of the time for hearing the said plea of privilege on April 12, 1928, the day first named for the hearing of the plea.
Notice the statute (Rev.St. 1925) article 2008: A hearing shall not be had "until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon."
The only purpose of this statute is to give 10 days' notice of the hearing of the plea to the defendant. When that is done, the provisions of the statute are complied with. It is undisputed that notice "for at least ten days exclusive of the day of service and the date of hearing" was given. Here the parties agreed for a hearing to be had at the next term of court, which was done.
Really, it was not necessary in this case to file a controverting affidavit to reply to appellant's plea of privilege, nor was it necessary to serve any character of notice of a contest. The trial court could have properly overruled the plea without statutory notice upon the filing by appellee of any appropriate plea challenging, as was done in this case, the ground set out.
The appellees resided in Uvalde county, where the alleged tort occurred.
In the case of Yates et al. v. State (Tex.Civ.App.) 3 S.W.2d 114, the court holds: "It is true that some early cases by the Courts of Civil Appeals held that, unless plaintiff controverted a plea of privilege under oath and within the time allowed by the statute, the Court was without jurisdiction to even determine the sufficiency of the plea of privilege, and must transfer the case; but recent decisions by all the Courts overrule those
cases, and hold that, unless plaintiff shall controvert the plea of privilege within the time prescribed, and as directed by the statute and under oath, the Court is without further jurisdiction over defendant on the venue question, except to hear the plea of privilege, and, if it is found sufficient as required by the statute, to transfer the cause in accordance therewith. So it is clear, under the recent decisions cited by Appellants, supra, that the law is now settled that the trial court must hear and determine, not only whether the plea of privilege is in due form and timely filed, but must also determine, where the issue is raised by some authorized pleading, the legal sufficiency of the plea of privilege as tested by the law controlling the venue of the particular kind or character of suit pending; that is, where the legal sufficiency of a plea of privilege is contested by appropriate pleadings, such as a demurrer thereto, and the issue or question raised is one determinable solely from the allegations of the plea itself and from the allegations of plaintiff's petition as to the nature, kind, or character of suit pending, the issue or question so raised is therefore one of law, which the Court has jurisdiction to determine, even though no controverting plea as required by the statute be filed to the plea of privilege. In other words, the matters or things which the statute requires to be controverted under oath in a plea of privilege are the matters or things of fact alleged, and not the issues or questions of law raised by the undisputed facts alleged, or facts which are shown by the plaintiff's pleadings to be untrue.
A suit for tort or trespass may be brought in the county where committed. Rev.St. 1925, art. 1995, § 9; Campbell et al. v. Wylie et al. (Tex.Civ.App.) 212 S.W. 980; Chatham Machinery Co. v. Smith (Tex.Civ.App.) 44 S.W. 592: Aldridge v. Webb, 92 Tex. 122, 46 S.W. 224.
However, the important question arising here grows out of the demand that notice of the hearing had not been served "at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon." Appellant not only had ten days' notice, but several months' notice, before the court heard such plea of privilege and entered judgment thereon.
When the case was first called for a hearing, on April 12, 1928, all the parties agreed that the hearing of the plea of privilege be postponed, without prejudice, to the next term of court, and it was. Appellant has not only had all the notice provided for, but it has waived all claims to further notice. Upon April 12, appellant appeared before the court in answer to the notice served on it, and by agreement continued the case to the next succeeding term of the court that heard it, on October 15, 1928.
There is nothing in the contention that the court ought to or should disregard the agreement of continuance, for it is as much a part of the record as any other thing in it, and it is not denied that the hearing was continued by agreement.
We do not think there is anything in appellant's proposition that it was error to permit the father, the mother, and their minor son to join together in the one suit against the owner of the automobile alleged to have caused the collision.
The law abhors a multiplicity of suits and a multiplicity of parties and causes of action. Here it is but one accident, and as to it the proof is the same. We can see no merit in the objection, and it is overruled. We see nothing comforting to appellant in Texas Mex. Ry. Co. v. Lewis et al. (Tex.Civ.App.) 99 S.W. 577, or the other cases cited by appellant, and the objection is overruled.
On the question of unavoidable accident, the proof shows that appellant was guilty of negligence. For instance, some of the witnesses testified that Kincaid tried to turn out, and, while so doing, his car skidded into the truck. Other witnesses show that the accident was caused by the appellant's truck being carelessly driven at and before the time of the accident. There was no such thing here as an unavoidable accident. The accident could not have been foreseen. Volume 20, p. 20, Ruling Case Law. The question of mental anguish to Mrs. Kincaid, on account of the injury to her husband and son, about which she testified, we do not think very material, for, if it could be separated, it would be subject to be controlled by the judgment of the court and diminished. However, the jury allowed no sum for mental anguish sustained by Mrs. Kincaid as a result of the injuries to her child.
In regard to the accident, E. B. Kincaid testified: "I was traveling slightly, probably, I don't know, about 15 miles there, until I got — I was getting ready to turn into my home, and I pulled out to the right of the road, and probably then, by that time, I was going, I know, not better than ten miles per hour, and I pulled out of the road to the right — Well, I pulled out of the road to the right, and my right front wheel was off the bank and my left one was on the edge of the gravel and my hind wheel was in the track and the left hind wheel was in the track that came down the center of the road, and this was where the truck hit me. I would judge that the approximate speed that this truck was traveling at that time was between 25 and 30 miles per hour. It was a truck with a trailer attached and had a bed on it; I do not know what the weight was, but it was a large truck. After the collision the truck that hit me stopped. I was about 100 feet from the place where my car was struck to where this truck stopped. I went back to the scene of this collision the following day. There were marks made by the wheels of this truck in the place
where it struck my car — there was a black mark where the wheel of this truck made, on the left hand side, from over slightly before it hit the car to where it had stopped. This black mark showed from the point where the truck struck my car backwards to a point about 90 feet, 90 feet from where my car was struck. I found marks there where the left rear wheel of my car dug into the gravel. About half way between the — about three feet from the edge of the gravel there was a mark where the wheel had dug into the gravel after the tire had been broken off — what was left of the wheel. Question: `What position did you say your car was in at the time it was struck with reference to the middle of the road?' Answer: `I was past the middle of the road on the right hand side.' I will state that the party who was driving the truck that struck my car made no attempt to turn out of the road before he struck me. This truck had two headlights, they were burning, but not very bright; well, they were dim. At the time of the collision the truck that struck me, that struck our car, was traveling in the middle of the road, but mostly on the left hand side of the road, and probably about two feet past the middle. They were past the middle of the road. The left hand side, or east side of the truck was on the east side of the center of the road. I was traveling on my own side of the road. I turned out in plenty of time for him to get by."
He further testified that he gave the truck more than half the road, and testified as follows: "I was not traveling on the left side of the road immediately before the collision; I was entirely on the right hand side of the road — my side. I turned out in plenty of time if the truck had turned and given me half of the road."
Mr. Kincaid's testimony is supported by other witnesses.
R. W. Smith, the driver of the truck that struck appellee's car, testified: "I was traveling about 14 or 15 miles per hour, and he was, I suppose, between 20 and 30 feet from me when I first applied my brakes; and seeing, as I came closer, I cut my truck to the right hand side of the road, the west side going south, until the right hand front wheel was off the gravel when he hit me, and after he hit me I changed gears and brought the truck to a complete stop, but first I pulled back up into the road. I stopped the first time something like four to six feet from the time he hit me. My right hand front wheel and my right hand driving wheel were off the gravel to the west side of the road. It was past the center of the road to the west side of the road, I would say, three and a half feet, where we hit each other, where his hind wheel hit my front part, the front part of my truck, where the collision occurred. It was west of the center of the road where his car hit the front end of my truck."
The accident occurred upon the Sabinal-Utopia road, which was a country road being graveled in the center, the gravel being 15 feet wide and having a 2-foot dirt shoulder on each side of the gravel. There was other testimony on the question. The jury found that the driver of defendant's truck failed to apply his brakes and stop the truck in time to avoid a collision with plaintiff's car, that such failure was negligence, and that such negligence was the proximate cause of the collision.
The jury also found that the driver of defendant's truck, instead of turning his truck to the right, crowded plaintiff's car and did not give plaintiff half of the road, but continued traveling down the center of the road and on the left side thereof, and that such manner of operating the truck constituted negligence, and that such negligence was the proximate cause of the collision. Texas City Transp. Co. v. Winters (Tex.Civ.App.) 193 S.W. 366; Rowan v. Hedges (Tex.Civ.App.) 175 S.W. 847; Bender v. Bender (Tex.Civ.App.) 187 S.W. 735; American Glycerin Co. et al. v. Kenridge Co. (Tex.Civ.App.) 295 S.W. 633; Wichita Falls Co. v. Craig (Tex.Civ.App.) 250 S.W. 733; 20 R.C.L. p. 20; Boyles v. McClure (Tex.Com.App.) 243 S.W. 1080.
Clearly Kincaid is entitled to recover the reasonable value of time lost by him from his business on account of the wrongful acts of appellant; likewise for hospital charges and for doctors' services, and all other expenses shown to have been caused by the accident, such as nurses' charges, drug bills, etc., in a reasonable amount. The jury found that $900 was the amount "reasonably and necessarily incurred by plaintiff, E. B. Kincaid, for hospital, doctors, nurses, drug bills and expenses in the treatment of himself, his wife and son for the injuries sustained" in said collision.
Appellant's propositions VI and VII, as well as the statements and arguments following, will not be considered, because they are based upon assignments of error wholly insufficient. Rule 26 of Court of Civil Appeals Rules; article 1844, Rev.St. 1925: Tyler County State Bank v. Shivers (Tex.Civ.App.) 281 S.W. 264.
Complaint is made that the court erred in permitting testimony in regard to insurance. That occurred in this way: The question was asked, "Was there an examination made at any time, of your own knowledge, by Dr. Nixon for the Insurance Company?" Upon objection, the question was withdrawn and the witness not permitted to further answer the question, and the court at once instructed the jury not to consider it. We can perceive of no harm done, and the proposition is overruled.
Question No. 4, submitted by the court to the jury, was, "Do you find from the evidence that said truck was being driven down the middle of the road and without sufficient
room to its left for approaching cars to pass on said road?" The jury answered, "No." Issue No. 10: "Do you find from the evidence that the driver of the truck instead of turning his truck to the right, crowded plaintiffs' car and did not give plaintiff his half of the road and on the left side thereof?" The jury answered, "Yes." Special Issue No. 7: "Do you find from the evidence that the driver of the truck failed to apply his brakes and stop his truck in time to avoid a collision with plaintiff's car?" The jury answered, "Yes." We perceive no error in the charge, but think it proper.
We have carefully examined all the errors assigned, propositions of law urged, but, finding no error that causes a reversal, the judgment is affirmed.