Killingsworth v. Bitner

PER CURIAM. This is an appeal from an order overruling appellant’s plea of privilege. The assignments are that plaintiff- failed to prove venue facts by a preponderance of the evidence as required by subdivision 9a, Article 1995, V.A.C.S., and that plaintiff failed to prove by a preponderance' of the evidence that the alleged act or omission of negligence occurred in Tom Green County, the county iñ which the suit was filed. We believe, that the court erred in oyer-ruling the plea of privilege. The evidence is short and is that the accident happened outside thé City Limits of San Angelo, Texas on the Ballinger Highway beyond the Wayside Inn some 100 to 200 yards. . , The defendant’s counsel made an objection prior to the court’s ruling pointing out that the situs of the' accident had not been established by competent testimony. Appellee concedes that no witness expressly stated that the accident was within the confines of Tom Green County.’ The burden was upon appellee to establish that the trespass occurred in Tom Green County, and admittedly this he failed to do. [750] We have concluded that the case has not been fully developed as to venue and we accordingly reverse ‘ and remand the cause to' the trial court for further proceedings. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458. Reversed and remanded.