Quinn v. Texas Power & Light Co.

593 S.W.2d 403, 1980 Tex. App. LEXIS 2941
CourtCourt of Appeals of Texas
DecidedJanuary 10, 1980
DocketNo. 1250
StatusPublished
Cited by1 cases

This text of 593 S.W.2d 403 (Quinn v. Texas Power & Light Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quinn v. Texas Power & Light Co., 593 S.W.2d 403, 1980 Tex. App. LEXIS 2941 (Tex. Ct. App. 1980).

Opinion

SUMMERS, Chief Justice.

This is an appeal from an order of the trial court sustaining the defendant’s plea of privilege.

Plaintiff, Ike Quinn, Jr., initiated this suit in the District Court of Nacogdoches County, Texas, against defendant, Texas Power and Light Company, to recover the sum of $29,000.00 as damages to a frame house and its contents allegedly resulting from a fire caused by the negligence of the defendant, its agents, servants and employees. In particular, Mr. Quinn alleged that “the transformer transmitting the power to the house belonging to Ike Quinn was overloaded.— This [the fire] was created by an increase in the voltage and created by the acts and omissions on the part of Texas Power and Light Company and their agents, servants and employees.”

Defendant filed its plea of privilege to be sued in Dallas County, Texas, the county of its residence, alleging that no exception to the general venue rule existed. Plaintiff filed his controverting plea seeking to maintain venue in Nacogdoches County under the provisions of Subdivisions 9, 9a, 23, 4 and 29a, Article 1995.1 Following a nonju-ry hearing, the plea of privilege was sustained by the trial court, and plaintiff Quinn perfected this appeal.

We affirm.

The record before us is without findings of fact or conclusions of law. Under these circumstances, the well-settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Pinney v. Cook, 558 S.W.2d 33, 39 (Tex.Civ.App.-Corpus Christi 1977, no writ); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App.-Tyler 1965, no writ).

In February of 1975, the plaintiff, Mr. Quinn, purchased the house in question and 9.3 acres of land for a total purchase price of $7,500.00; he attributed most of the purchase price to the land. The house was wood frame with 4 rooms; at the time of purchase it was 30 to 40 years old, had not been occupied for two years and had knob and tube wiring. Soon after his purchase, Mr. Quinn did some remodeling which included moving some existing partitions, adding a bathroom in the back porch area, and the addition of some electrical equipment to the existing wiring. The electrical work was done by the plaintiff’s friend, a Mr. James Carter; he put in a new circuit breaker box, added a new circuit for a clothes dryer and a light with switch in the bathroom. The original wiring in the house was left unaltered.

On March 22, 1977, the house was destroyed and its contents were damaged by a [406]*406fire occurring in Nacogdoches County. On February 17, 1978, the plaintiff Quinn filed this suit against defendant for damages to his house and contents resulting from such fire.

Appellant predicates his appeal on two points of error contending that the trial court erred in sustaining appellee’s plea of privilege inasmuch as (1) a prima facie case of negligence was established by a preponderance of the evidence of a negligent act that occurred in Nacogdoches County, the county where this suit was filed; and (2) a defective instrumentality under the supervision, care and control of the appellee caused damages in Nacogdoches County, Texas, as established by a prima facie degree of negligence, proved by a preponderance of the evidence.

We regard that plaintiff’s points of error are “no evidence points.” Plaintiff does not seek a remand of the plea of privilege proceedings for a new trial but asks that the case be reversed and rendered holding that venue was properly laid in Nacogdoches County. Pesek v. Murrel’s Welding Works, Inc., 558 S.W.2d 39, 43 (Tex.Civ.App.-San Antonio 1977, writ dism’d). Plaintiff does not here assert that the trial court’s order sustaining defendant’s plea of privilege is against the great weight and preponderance of the evidence.

On appeal from an order sustaining the defendant’s plea of privilege the appellate court should affirm the judgment of the trial court if there exists in the record evidence of probative value, sufficient to support the trial court’s judgment. On the no evidence contention asserted in plaintiff’s two points of error, the Court of Civil Appeals is required to follow the rule, which, in effect says: If, discarding all adverse evidence and giving credit to all the evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. This rule is applicable on appeal from orders sustaining or overruling a plea of privilege. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 100 (1953); Nerio v. Tijerina, 508 S.W.2d 672, 674 (Tex.Civ.App.-Corpus Christi 1974, writ dism’d).

In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935), the Supreme Court of this State laid down the rule that the plaintiff must plead and prove the venue facts required by the applicable subdivision of Article 1995, supra, and further he must plead and prove such facts just as any other litigant, who, in a hearing or trial, had the burden of proving a fact. Venue must be proved by a preponderance of the evidence. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). Venue cannot be established by implication. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950).

Under the provisions of Subdivision 9a of Article 1995, the venue facts necessary for the plaintiff to establish by a preponderance of the evidence in order to sustain venue in the county other than the county of defendant’s residence are: (1) that an act or omission of negligence occurred in the county where the suit was filed; (2) that such act or omission was that of the defendant, or his servant, agent or representative acting within the scope of his employment, and (3) that such negligence was a proximate cause of plaintiff’s injuries. 1 McDonald, Texas Civil Practice, sec. 4.17.2 (1965).

As we view the record, the plaintiff has wholly failed under the applicable rules to prove by a preponderance of the evidence that the defendant committed any act of negligence in Nacogdoches County which was a proximate cause of the damage complained of by the plaintiff. Mr. Quinn contends that a defect in or failure of defendant’s equipment caused the fire at plaintiff’s house. Mr.

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Bluebook (online)
593 S.W.2d 403, 1980 Tex. App. LEXIS 2941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-texas-power-light-co-texapp-1980.