Maitland v. Santor , 1948 Tex. App. LEXIS 928 ( 1948 )

MURRAY, Justice.

This is a plea of privilege case. The suit was instituted in the 73d District Court of Bexar County, Texas, by Walter Santor and Matilda Santor, for themselves and as next friend of their minor son, John Santor, against Lester J. Maitland, seeking to recover damages for personal injuries allegedly sustained by John Santor when he was struck by a truck being driven by defendant. Maitland filed a plea of privilege to be sued in Kendall County, the county of his residence. A jury trial was had and resulted in judgment overruling defendant’s plea of privilege, from which judgment Lester J. Maitland has prosecuted this appeal.

Appellant first contends that he was surprised as a result of the trial court permitting the appellees to amend their pleadings after an announcement of ready and after the selection of a jury had begun. Appellees had alleged in their petition that the collision occurred within the corporate limits of the city of San Antonio but had neglected to allege that said city was located in Bexar County, Texas. However, in their controverting affidavit plaintiffs did allege that San Antonio was in Bexar County, Texas. In view of the fact that the suit was filed in the District Court of Bexar County, Texas, and the controverting affidavit alleged that San Antonio was located in Bexar County, Texas; and in view of the further fact that San Antonio is one of the largest cities in the State of Texas and the county seat of Bexar County, and that the appellant lived in Kendall County, which is an adjoining county to Bexar, we are of the opinion that appellant was not so surprised by the filing of the trial amendment alleging that the City of San Antonio was in Bexar County, Texas, as to entitle him to withdraw his announcement of ready and have the cause continued. The trial court did not abuse his discretion in refusing to permit appellant to withdraw his announcement of ready and have a continuance of the hearing.

The case was submitted to the jury on four special issues. The first and second issues were answered favorably to appellees, the third was answered favorably to appellant, and the last issue was not answered, therefore the judgment is based upon the jury’s answers to issue Nos. 1 and 2.

These two issues are as follows:

“Question No. 1: Do you find from a preponderance of the evidence that at the time the defendant’s truck struck the plaintiff, John Santor, the defendant was under the influence of intoxicating liquor ?”

“Question No. 2: Do you find from a preponderance of the evidence that the defendant, being under the influence of intoxicating liquor, if you have found that he was, was a proximate cause of John San-tor being struck by defendant’s truck?”

It is clear that before appellees could maintain venue of this cause in Bexar County under Sec. 9 of Art. 1995, Vernon’s Ann.Civ.Stats., they would be required to secure a finding from the jury that appellant was guilty of negligence and that such negligence was the proximate cause of John Santor’s injuries.

We will here presume without deciding that issue No. 1 was sufficient to constitute a finding that appellant was operating his truck while under the influence of liquor and that such act was negligence per se. But we cannot conclude that issue No. 2 is a finding that such negligence was the proximate cause of appellees’ injuries.

If a strict construction of the language used in issue No. 2 is taken it would be an inquiry as to whether the defendant was the proximate cause of John Santor being struck by defendant’s truck, the phrase, “being under the influence of intoxicating liquor, if you have found that he was” being merely descriptive of the defendant. This construction would render this issue meaningless insofar as a finding of proximate cause is concerned.

However, if we give a more liberal meaning to this language, it might be construed as an inquiry as to whether the defendant’s “being under the influence of intoxicating liquor” was the proximate cause of John Santor being struck by defendant’s truck. Still this would not be a finding on proximate cause such as would support a finding that a trespass had been committed in Bex-ar County. A person’s driving while intoxicated simply cannot be the proximate cause of an injury. Even though a person is intoxicated, if he drives properly his being intoxicated cannot be the proximate cause of another person’s injury. If he drives on the wrong side of the road, fails to keep a proper look-out, fails to stop, fails to apply his brakes, drives at an excessive rate of speed, or in a careless or reckless manner, under all the circumstances, then such acts or some similar act might be found to be the proximate cause of the injury, but not, merely a person’s intoxication. It will be recalled that the question asked did not go so far as to ask if “his driving while under the influence of liquor” was the proximate cause of the injury, but only if “his being under the influence of intoxicating liquor” was the proximate cause.

For the error pointed out, the order overruling the plea of privilege is reversed and' judgment here rendered granting such plea of privilege, and the cause will be transferred to the District Court of Kendall County, Texas, in keeping with the provisions of Rule 89, Texas Rules of Civil Procedure.