Austin Road Co. v. Anderson , 211 S.W.2d 765 ( 1947 )

On Motion for Rehearing While this motion for rehearing has been pending, this court on its own motion certified to the Supreme Court the following two questions:

"(1) After the defendant has timely filed its plea of privilege which contains all the allegations required under Rule 82, T.R.C.P., and when venue issue has been joined with plaintiff's controverting plea did the burden of proof rest upon plaintiff to prove that the above acts of defendant in piling the dirt as stated were done in violation of the terms and specifications of the contract had with the State Highway Department in order to maintain venue in Gregg County, Texas;

"(2) Or was a prima facie case made when the trespass was shown, thereby shifting the burden of proceeding to the defendant and making it incumbent on defendant to show defensively that its acts were in conformity with the requirements of its contract?"

The Supreme Court, 209 S.W.2d 595, answered the first question "No," and the second "Yes."

In view of such answers which determines upon whom the burden of proof rested under the particular facts of this record, the judgment of this court heretofore rendered on June 26, 1947, is set aside, and the judgment of the trial court is in all respects affirmed.