Beaumont Motor Co. v. Frenzell , 1966 Tex. App. LEXIS 2639 ( 1966 )

STEPHENSON, Justice.

This is an appeal from an order of the trial court overruling the plea of privilege filed by General Motors Corporation, Chevrolet Motor Division, hereinafter called General Motors Corporation. The parties will be referred to here as they were in the trial court.

Plaintiff brought this action in Orange County against two defendants. Defendant Beaumont Motor Company filed its plea of privilege to be sued in Jefferson County which was sustained and the entire case was transferred to Jefferson County. Defendant General Motors Corporation filed its plea of privilege to be sued in Dallas County, which was overruled.

Plaintiff alleged in his controverting affidavit that venue should be sustained in Orange County as to defendant General Motors Corporation under Sections 9a, 23 and 27 of Art. 1995, Vernon’s Ann.Civ.St., and as to defendant Beaumont Motor Company under Sections 9a, 23 and 29a of Art. 1995, V.A.C.S.

Plaintiff sued both defendants for damages alleging that he purchased a Chevrolet automobile from Beaumont Motor Company new September 29, 1964, which was destroyed by fire while he was driving in Orange County, July 1, 1965. Plaintiff alleged this automobile was manufactured by General Motors Corporation. This suit was based upon both negligence and breach of warranty.

The plaintiff in this cause has made no complaint as to the order of the trial court transferring this entire case to Jefferson County. The record shows no notice of appeal nor objection by plaintiff to the order entered. We are not faced with a situation in which plaintiff filed a suit in a county against two defendants and alleged and proved venue as to one defendant and that the other defendant was a necessary party under § 29a, Art. 1995, V.A.C.S.

We hold that the failure of plaintiff to maintain venue in Orange County as to either defendant gave the trial court no legal authority to transfer the entire case to Jefferson County. Plaintiff neither plead nor proved that he had a joint action against both defendants nor that General Motors Corporation was a necessary party in the action against Beaumont Motor Company. The cause of action as to General Motors Corporation should have been severed from the cause of action against Beaumont Motor Company and transferred to Dallas County.

That portion of the order transferring the cause of action against General Motors Corporation to Jefferson County is reversed and judgment is rendered transferring it to Dallas County.

Reversed in part and Rendered.