De Mars v. Montez , 277 S.W. 402 ( 1925 )

Juan Montez, by his next friend and parent, brought this suit in the district court of Bexar county. It is alleged that Juan Montez was riding a bicycle on a public road in Bexar county, Tex., when an automobile being operated by appellant came in collision with appellee and his bicycle causing severe and painful injuries to said Juan Montez; that the accident was due to the negligence of the appellant, and that the said negligence was a direct and proximate cause of the accident, which caused appellee severe and painful injuries and disfiguration, and damaged him in the sum of $500. Appellant filed a proper plea of privilege, demanding his right to be sued in Dallas county, the county in which he resided. Appellee filed his controverting affidavit.

There are two ways provided for trying the issue raised by a plea of privilege. One is by trying it with the whole case on its merits, and the other is by trying the issue alone as raised by the plea of privilege. The latter mode was followed here, and this appeal is predicated alone upon the issues raised growing out of the plea of privilege.

The defendant upon his plea may be heard on the facts to the extent of showing whether or not the facts upon which the venue is sought to be maintained in the particular county are sufficient. Russell Grader Mfg. Co. of Texas v. McMillin (Tex.Civ.App.) 271 S.W. 124; J. G. Smith Grain Co. v. Shuler (Tex.Civ.App.) 249 S.W. 524; Leach v. Stone (Tex.Civ.App.)264 S.W. 620.

The venue is attempted to be maintained in Bexar county, on the ground of the alleged trespass committed in that county. The burden is placed upon appellee, when the plea of privilege is presented, to sustain the venue.

While the testimony is not as strong as it might be, yet we believe it is sufficient to sustain the venue, and sufficient to go to the jury on the question of negligence, which caused the injuries to appellee. If the automobile was negligently operated, it is a trespass, which fixes the venue in the county where the accident happened.

Upon the trial of a plea of privilege it is not necessary for one to introduce all his testimony, as he would on a final trial; it is only necessary to show an actionable act of negligence, and the venue will be sustained, because it is not contemplated that it is being developed upon the merits of the whole case. Ulrich v. Krueger (Tex.Civ.App.)272 S.W. 824.

In view of the fact that this case will be tried on its merits, we refrain from discussing the testimony, lest it may have a prejudicial effect on its final disposition.

The judgment of the trial court is affirmed.