McFarlin v. Taylor

420 S.W.2d 188, 1967 Tex. App. LEXIS 2518

• Court: Court of Appeals of Texas
• Decided: October 2, 1967
• Docket: No. 7739
• Status: Published

Opinions

NORTHCUTT, Justice.

This is a venue case. Plaintiff below, ap-pellee here, Delta Christiansen Taylor, of Lubbock County sued Joe Wayne McFarlin of Hale County in the District Court of Lubbock County for damages due to the death of her husband resulting from an accident occurring on October 30, 1965, in the town of New Deal, Lubbock County, Texas. Plaintiff alleged that defendant, Joe Wayne McFarlin, while driving his car in a southerly direction on U. S. 87 negligently struck and killed the plaintiff’s husband. Defendant filed in due form his plea of privilege to be sued in Hale County, his domiciliary residence. The plea was controverted by an allegation relying upon Exception 9a of Article 1995, Vernon’s Ann.Tex.Civ.St. That exception provides as follows:

“9a. Negligence.- — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:

“1. That an act or omission of negligence occurred in the county where suit was filed.

“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.

“3. That such negligence was a proximate cause of plaintiffs injuries.”

The court, after a hearing was had, overruled defendant’s plea of privilege and held appellant’s plea of privilege was overruled and the cause ordered to remain in the District Court of Lubbock County, Texas. From that ruling defendant perfected this appeal. The defendant will hereafter be referred to as appellant and plaintiff as appellee.

Appellant presents this appeal upon three points of error. The first point is that the court erred in overruling appellant’s plea of privilege for the reason that there was no evidence to sustain venue in Lubbock County, Texas. The second point contends there was insufficient evidence to sustain such holding and the third point that such action was manifestly unjust and against the great weight and preponderance of the evidence. Since we sustain appellant’s first point, we will not discuss the remaining two points.

The fact that appellant struck and killed the husband of appellee without some proof of negligence on the part of appellant is not sufficient to hold venue in Lubbock County. This record is void of any testimony of how the accident happened and neither is there any evidence to show appellant was negligent in any manner. There is no evidence that appellant was speeding or that he failed to keep a proper lookout or could have seen the deceased or any other acts of appellant to constitute negligence on his part. Negligence or a failure to perform a duty required by law is never presumed as a fact but must be proved by evidence and the burden of proving it is on the party seeking a recovery of damages by reason of such negligence or failure of duty. Jones v. Nafco Oil And Gas, Inc., 380 S.W.2d 570 (Tex.1964); Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.-Tyler, 1966, writ ref’d n. r. e.); McCarty v. White, 314 S.W.2d 155 (Tex.Civ.App.-Eastland, 1958, no writ).

In order to maintain venue in a county other than the residence of defendant under Subsection 9a, a plaintiff must establish by a preponderance of the evidence that an act of negligence which was a proximate cause of the injury was committed in the county where suit is brought by the defendant or those for whose negligent conduct he would be legally liable. Southland Beauty Shops, Inc. v. Foreman, 319 S.W.2d 737 (Tex.Civ.App.-Houston, 1958, writ dism’d); Campos v. Smith, 386 S.W.2d 823 (Tex.Civ.App.-San Antonio, 1965, no writ).

There is no evidence that McFarlin ever saw the deceased or knew anything about his presence until after he struck something. Neither is there any other evidence showing appellant was guilty of any negligence other than the fact that deceased was hit and injured. The proof that an accident occurred is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (1937) ; Austin Bridge Company v. Polanca, 300 S.W.2d 173 (Tex.Civ.App.-Eastland, 1957, no writ); Conner v. Chatman 272 S.W.2d 136 (Tex.Civ.App.-Galveston, 1954, no writ).

We are of the opinion, and so hold, that there is no evidence in this record showing any negligence on the part of appellant causing the injury and death of appellee’s husband; but should we be wrong in so holding, we further hold the evidence was insufficient to establish by a preponderance of the evidence such facts as to sustain venue in Lubbock County.

Judgment of the trial court is reversed and rendered and here ordered that the case be transferred to the District Court of Hale County, Texas.