Jones v. Chowning , 1956 Tex. App. LEXIS 1996 ( 1956 )

COLLINGS, Justice!

This is an appeal from an order overruling a plea of privilege. Marion Chowning, Jr. and wife, Wilma Chowning, individually and as next friends for their minor son, Carol Chowning, brought suit in the District Court of Knox County, Texas against John T. L. Jones, Jr. and John T. L. Jones, Sr. Plaintiffs sought to recover damages for injuries alleged to have been sustained by the minor, Carol Chowning, as a result of being struck by' an automobile alleged to have been owned by John T. L. Jones, Sr. and operated by John Jones, Jr. The accident was alleged to have occurred on Highway 283 in Knox County, Texas. Both defendants filed pleas of privilege to be sued in Hardeman County, Texas, the place of their residence. After a hearing plaintiffs took a nonsuit as to the defendant John T. L. Jones, Sr. The court then overruled the plea of privilege" of the defendant, John T. L. Jones, Jr., and he has brought this appeal.

In several points appellant John T. L. Jones, Jr. contends that the court erred in -overruling his plea of privilege to be sued in the county of his residence. He urges that there was no evidence and that in any event the evidence was insufficient to show that he was operating and was adequately identified as the operator of the automobile that struck the minor, Carol Chowning.

The evidence shows that after school was out on September 24, 1954, appellee Carol Chowning, a minor in the fifth grade, got on the school bus to go to his home. The school bus stopped near the Chowning home in Knox County, Texas. Appellee Carol Chowning got off the bus and, as he started to cross the highway, was hit by an automobile and seriously injured. The driver of the school bus testified that the driver of the automobile involved in the accident was “a fellow named Jones from Quanah”; that Jones wanted to call an ambulance but that'they put the Chowning hoy in the car and carried him to the hospital at Crowell. The bus driver stated that “the Jones boy did everything in his power to help and assist.” Glenn Shook, a Deputy Sheriff, went to the hospital on the •occasion in question. His testimony indicates that he saw and talked to John T. L. Jones, Jr. while there, and that Jones admitted to him that the accident was his fault; that Jones stated that he did not see the school bus or the child until he was ■“even with him”; and also stated that he “was fairly flying”.

The deposition of Mr. John T. L. Jones, Sr. was introduced in evidence. He testified that he resided in Quanah, Texas, and that he had one son, whose name was John T. L. Jones, Jr. He stated that during September, 1954, his son was attending college in Abilene, Texas, and was at that time twenty years of age. Mr. John T. L. Jones, Sr. testified in effect that he was the •owner of the automobile involved in the accident; that he furnished the automobile to his son for use in going to- and from school in Abilene, and had requested his son to come home for a visit when he could; that the occasion for his son being on the highway at the time of the accident was that he was coming home from school over the weekend. He stated that his son called from Crowell on September 24, 1954, and told him of the accident. Mr. John T. L. Jones, Sr. further testified that he immediately went to Crowell; that when he arrived at the hospital he did not see Mr. and Mrs. Chowning, but did inquire r about the injuries sustained by the minor son, Carol Chowning.

The evidence is in our opinion sufficient to support the implied findings of the court that John T. L. Jones, Jr. was the person operating the automobile which struck ap-pellee Carol Chowning in Knox County, Texas on September 24, 1°54. The evidence shows that Mr. John T. L. Jones, Sr. was the owner of the automobile involved in the accident; that he turned the car over to his son, John T. L. Jones, Jr., to be used in going to and from school while attending college in Abilene, Texas, and in visiting his parents in Quanah whenever possible. The evidence further shows that a young man by the name of Jones was at the scene of the accident and assisted the bus driver in taking the Chowning boy to the hospital in Crowell, and that Jones, Jr. while at the hospital in effect admitted to the Deputy Sheriff that he was the driver of the car by stating, “It was all my fault; I didn’t see the school bus or the child until I was even with him; I was fairly flying.” ‘ Mr. John T. L. Jones, Sr. testified that appellant John T. L. Jones, Jr. was his only son and that his son called him from Crowell the night of the accident and told him about it. There was no evidence or suggestion that any man other than appellant John T. L. Jones, Jr. was in the car at the'time of the collision, or that any person by the name of Jones, other than the appellant and his father, was in any way connected with the ownership or operation of the automobile involved. Appellant did not take the witness stand. Appellant’s points complaining of the lack and insufficiency of the evidence to identify him as the operator of the automobile that struck and injured Carol Chowning are overruled.

The judgment of the trial court is affirmed.