Robertson Truck Lines, Inc. v. Hogden

Court of Appeals of Texas

Robertson Truck Lines, Inc. v. Hogden

487 S.W.2d 401, 1972 Tex. App. LEXIS 2834

CourtCourt of Appeals of Texas

DecidedNovember 9, 1972

DocketNo. 7374

StatusPublished

Cited by3 cases

This text of 487 S.W.2d 401 (Robertson Truck Lines, Inc. v. Hogden) 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

Robertson Truck Lines, Inc. v. Hogden, 487 S.W.2d 401, 1972 Tex. App. LEXIS 2834 (Tex. Ct. App. 1972).

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Opinions

DIES, Chief Justice.

This is an appeal from an order overruling a plea of privilege. The basis of the appeal is that plaintiff (appellee) failed to prove venue in Orange County because there was no evidence considered by the trial court. Depositions had been taken prior to the hearing, but there was no formal offer of them in evidence which is the basis of this appeal.

The transcript shows plaintiff’s original petition named Robertson Truck Lines, Inc., as defendant. Plaintiff’s First Amended Original Petition filed in the same suit, under the same number, named both Robertson Truck Lines, Inc., and Robertson Tank Lines, Inc., as defendants. Both were shown to be Texas corporations with the same person named as agent for service at the same address. Each petition alleged the same cause of action, with only minor variations. The plea of privilege for Robertson Tank Lines, Inc., is signed by Lipscomb Norvell. This is the same attorney who took the depositions which are mentioned hereafter.

The statement of facts reveals the following exchange by Mr. Stephenson (appellee’s attorney), the Court, and Mr. Norvell (appellants’ attorney):

“MR. STEPHENSON: Your Honor, what this hearing is about, you may recall that we have this action, Fred Hogden versus Robertson Truck Lines which is pending in which we had a previous Plea of Privilege hearing. At that time it was decided to submit the matter to Your Honor on depositions because all the parties had been deposed, the truck driver and both drivers of the automobiles and so on. Following Mr. Norvell’s statements at the last hearing that the Robertson Tank Lines, Inc. was the proper [402]*402party Defendant, we amended our Petition and have brought this action now against both the Robertson Truck Lines and Robertson Tank Lines. Mr. Norvell, upon receiving a copy of this Amended Petition, has filed another Plea of Privilege on behalf of Robertson Tank Lines to have the action moved as to it to Houston, the same location as he requested that the Robertson Truck Lines action be transferred to Houston.

“We filed Controverting Plea, setting out the same matters, in general, that we had in the other Truck Lines Controverting Plea of Privilege, and would like to suggest to the Court that this matter can be considered on the written depositions which are filed here in Court.

“THE COURT: Mr. Norvell, do you have anything?

“MR. NORVELL: We already have one record on this, Your Honor. Of course, again, I would like to say if this is going to he submitted on written deposition, of course it is the Plaintiff’s right to do so, and if you want me to respond on what my argument is about the case, I would be happy to.

“THE COURT: I don’t think there is any necessity. If I can state it correctly, Mr. Stephenson first sued the Truck Line—

“MR. STEPHENSON: Yes, sir.

“THE COURT: —and then it was indicated in the deposition that the employee, or the driver, the truck driver, was an employee of the Tank Lines. Now he has sued the Tank Lines.

“MR. NORVELL: Yes, sir.

“THE COURT: And you have filed a Plea of Privilege on that. Is that the way we stand?

“MR. NORVELL: Yes, sir, that is correct.

“THE COURT: I think I indicated that I wanted some law from Mr. Stephenson and from you on this matter. Do you have new depositions that you have taken, Mr. Stephenson, or the same ones?

“MR. STEPHENSON: No, the same ones, Your Honor.

“THE COURT: The same ones. Have you got any briefs you want to file on this ?

“MR. STEPHENSON: Not at this time, Your Honor.

“THE COURT: All right, I will read the depositions, then, and advise you by letter of my decision.” (emphasis supplied)

Appellant made no objection to this procedure, nor to the consideration by the court of these depositions.

Depositions, like all evidence, must be offered in evidence. See 1 McCormick and Ray, Texas Law of Evidence § 21 (2d ed. 1956). There are no magic or exclusive words to be used. The court here clearly announced his intention to read the depositions on file. Appellant’s attorney made no objection and cannot now be heard for the first time objecting to the manner of introduction. See 1 Texas Law of Evidence § 23, supra. Appellant does not here contend that the contents of the depositions fail to establish venue in Orange County.

The order overruling the plea of privilege is affirmed.

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DIES, Chief Justice.

This is an appeal from an order overruling a plea of privilege. The basis of the appeal is that plaintiff (appellee) failed to prove venue in Orange County because there was no evidence considered by the trial court. Depositions had been taken prior to the hearing, but there was no formal offer of them in evidence which is the basis of this appeal.

The transcript shows plaintiff’s original petition named Robertson Truck Lines, Inc., as defendant. Plaintiff’s First Amended Original Petition filed in the same suit, under the same number, named both Robertson Truck Lines, Inc., and Robertson Tank Lines, Inc., as defendants. Both were shown to be Texas corporations with the same person named as agent for service at the same address. Each petition alleged the same cause of action, with only minor variations. The plea of privilege for Robertson Tank Lines, Inc., is signed by Lipscomb Norvell. This is the same attorney who took the depositions which are mentioned hereafter.

The statement of facts reveals the following exchange by Mr. Stephenson (appellee’s attorney), the Court, and Mr. Norvell (appellants’ attorney):

“MR. STEPHENSON: Your Honor, what this hearing is about, you may recall that we have this action, Fred Hogden versus Robertson Truck Lines which is pending in which we had a previous Plea of Privilege hearing. At that time it was decided to submit the matter to Your Honor on depositions because all the parties had been deposed, the truck driver and both drivers of the automobiles and so on. Following Mr. Norvell’s statements at the last hearing that the Robertson Tank Lines, Inc. was the proper [402]*402party Defendant, we amended our Petition and have brought this action now against both the Robertson Truck Lines and Robertson Tank Lines. Mr. Norvell, upon receiving a copy of this Amended Petition, has filed another Plea of Privilege on behalf of Robertson Tank Lines to have the action moved as to it to Houston, the same location as he requested that the Robertson Truck Lines action be transferred to Houston.

“We filed Controverting Plea, setting out the same matters, in general, that we had in the other Truck Lines Controverting Plea of Privilege, and would like to suggest to the Court that this matter can be considered on the written depositions which are filed here in Court.

“THE COURT: Mr. Norvell, do you have anything?

“MR. NORVELL: We already have one record on this, Your Honor. Of course, again, I would like to say if this is going to he submitted on written deposition, of course it is the Plaintiff’s right to do so, and if you want me to respond on what my argument is about the case, I would be happy to.

“THE COURT: I don’t think there is any necessity. If I can state it correctly, Mr. Stephenson first sued the Truck Line—

“MR. STEPHENSON: Yes, sir.

“THE COURT: —and then it was indicated in the deposition that the employee, or the driver, the truck driver, was an employee of the Tank Lines. Now he has sued the Tank Lines.

“MR. NORVELL: Yes, sir.

“THE COURT: And you have filed a Plea of Privilege on that. Is that the way we stand?

“MR. NORVELL: Yes, sir, that is correct.

“THE COURT: I think I indicated that I wanted some law from Mr. Stephenson and from you on this matter. Do you have new depositions that you have taken, Mr. Stephenson, or the same ones?

“MR. STEPHENSON: No, the same ones, Your Honor.

“THE COURT: The same ones. Have you got any briefs you want to file on this ?

“MR. STEPHENSON: Not at this time, Your Honor.

“THE COURT: All right, I will read the depositions, then, and advise you by letter of my decision.” (emphasis supplied)

Appellant made no objection to this procedure, nor to the consideration by the court of these depositions.

Depositions, like all evidence, must be offered in evidence. See 1 McCormick and Ray, Texas Law of Evidence § 21 (2d ed. 1956). There are no magic or exclusive words to be used. The court here clearly announced his intention to read the depositions on file. Appellant’s attorney made no objection and cannot now be heard for the first time objecting to the manner of introduction. See 1 Texas Law of Evidence § 23, supra. Appellant does not here contend that the contents of the depositions fail to establish venue in Orange County.

The order overruling the plea of privilege is affirmed.

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487 S.W.2d 401, 1972 Tex. App. LEXIS 2834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-truck-lines-inc-v-hogden-texapp-1972.

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