Foster v. H. E. Butt Grocery Co. , 1977 Tex. App. LEXIS 2704 ( 1977 )

BARROW, Chief Justice.

This is a venue action involving Subd. 4, Art. 1995, Tex.Rev.Civ.Stat.Ann. Appellant has perfected his appeal from an order entered after a non-jury hearing sustaining the plea of privilege of appellee and ordering the cause of action against appellee transferred to its residence of Nueces County-

Appellant brought this suit in Bexar County against Earl E. Richardson and ap-pellee seeking to recover damages for injuries sustained when Richardson struck appellant in the face with his fist during a heated argument. Richardson was employed by appellee as a part-time security guard at one of its food stores in San Antonio and an argument ensued after Richardson accused appellant of shoplifting.

The venue facts under Subd. 4 are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the claim against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Town and Country Mobile Homes, Inc. v. Benfer, 527 S.W.2d 523 (Tex.Civ.App.—San Antonio 1975, no writ); 1 McDonald, Tex. Civ.Practice, § 4.10.2-(II) (1965 rev.).

The question before us on this appeal is whether the trial court abused its discretion in finding that appellant failed to prove his cause of action against Richardson, the resident defendant. Appellant alleged in his petition that “RICHARDSON, while acting in the course and scope of his employment with H. E. BUTT GROCERY CO., did maliciously and unlawfully strike Plaintiff in the face with his fist, . . . .” In his controverting plea appellant alleged that he had a cause of action against the resident defendant in that “RICHARDSON did maliciously and unlawfully strike Plaintiff in the face with his fist, causing great bodily injury as set forth in said Petition.”

Richardson was the only witness at the venue hearing and appellant concedes for the purpose of this appeal that there is evidence that Richardson was acting in self-defense. He urges, however, that the question of self-defense is in the nature of an affirmative defense and immaterial in a plea of privilege hearing. Appellant asserts that when he proved that Richardson intentionally struck him in the face, he established, as a matter of law, a cause of action for assault and battery.

A similar contention was considered and rejected by the Supreme Court in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). This was a suit for damages for wrongful death wherein the Court was required to decide the question of which party had the burden of proof where the evidence raised self-defense. The Court recognized at the outset that the authorities were conflicting on this question. It is clear from the opinion that Vega vigorously relied on the holding of Cameron Compress Co. v. Kubecka, 283 S.W. 285 (Tex.Civ.App.—Austin 1926, writ ref’d). After a full review of the authorities, it was held that if plaintiff proved an intentional killing, he has met his burden of showing that the death was wrongful. However, if the evidence raises an issue of justification, such as self-defense, the plaintiff has the burden of proof to overcome the evidence of self-defense. Otherwise, plaintiff fails to prove his cause of action that the death was wrongful. This holding was followed in Bradford v. Fort Worth Transit Company, 450 S.W.2d 919 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.). See also McMurrey Corp. v. Yawn, 143 S.W.2d 664 (Tex.Civ.App.—Texarkana 1940, writ ref’d).

In Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), the Supreme Court quoted with approval the holding in Grieger to the effect that the burden of proof was upon plaintiff where the issue of self-defense was raised by the evidence. The Court applied this reasoning in adopting the rule that the burden of proof on a contention of excuse is on the party who asserts that his adversary has been guilty of negligence per se. See also Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex.1966).

It is settled law that, with the exception of the rule of evidence which gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); March v. Walker, 48 Tex. 372 (1877). Clearly a defendant charged with an assault under Sec. 22.01¹ would be entitled to an instruction embracing the element of self-defense as defined under Sec. 9.311 where the evidence raises such issue. Thus, if the defendant was acting in self-defense, the assault would not be unlawful. Under Rule 277, Tex.R.Civ.P., a similar instruction should be given in connection with an issue inquiring as to whether the defendant committed an assault and battery upon plaintiff. Cf. Pon Lip Chew v. Gilliland, 398 S.W.2d 98 (Tex.1965).

The trial court impliedly found that appellant failed to discharge his burden of establishing that Richardson was not acting in self-defense at the time he struck appellant. Appellant concedes that there is evidence to support such finding. Thus, appellant failed to discharge his venue burden of proving that Richardson unlawfully struck him. He therefore failed to establish a cause of action against the resident defendant. The trial court did not err in sustaining appellee’s plea of privilege.

The judgment is affirmed.

1 . Texas Penal Code Ann.