1 McDonald, Texas Civil Practice § 4.17.2; General Motors Corporation v. Brady, 477 S.W.2d 385 (Tex.Civ.App. — Tyler 1972, no writ). The order overruling the plea of privilege implies findings that the plaintiff has established by evidence the required venue facts. Allen M. Campbell, Gen. Contractors, Inc. v. McDonald, 347 S.W.2d 781 (Tex.Civ.App. — Beaumont 1961, no writ). The appellant attacks the implied findings by seven points of error. Summarized, the contentions are that there is no competent evidence to sustain such implied findings or, in the alternative, that such implied findings are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.
Contributory negligence and similar defenses do not affect venue. Campbell, General Contractors, Inc. v. McDonald, 347 S.W.2d 781 (Tex.Civ.App.), no writ hist. Moreover, defenses such as contributory negligence, negligence of a fellow employee and assumed risk are not available to defendant in a non-subscriber case.
This is a matter to be properly considered in a trial on the merits. John F. Buckner Sons v. Allen, 272 S.W.2d 929 (Tex.Civ.App.-Austin, 1954, writ dism'd); Allen M. Campbell, General Contractors, Inc. v. McDonald, 347 S.W.2d 781 (Tex. Civ.App.-Beaumont, 1961, no writ history); Perry Construction Co. v. Watkins, 367 S.W.2d 913 (Tex.Civ.App.-Waco, 1963, no writ). In view of our holding of proximate cause on the negligent construction and negligence in permitting the pole to remain on the roadway, we see no point in writing on the negligence and proximate cause in failing to warn.
We hold that the evidence is sufficient to support the court's presumed finding of all said venue facts. See Allen M. Campbell General Contractors, Inc. v. McDonald, Tex.Civ.App., 347 S.W.2d 781; Galloway v. Nichols, Tex.Civ.App., 269 S.W.2d 850; John F. Buckner Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929, (writ dis.) and Houston North Texas Motor Freight Lines, Inc. v. Watson, Tex.Civ.App., 293 S.W.2d 207. All of appellant's points have been considered and are overruled. The judgment is affirmed.
Without question there is evidence from which a trier of the facts might find appellee's action was negligence and a proximate cause of the collision, but we are not concerned with contributory negligence on the venue question, which is a matter to be properly considered in a trial on the merits. John F. Buckner Sons v. Allen, supra; Allen M. Campbell, Gen. Contractors, Inc. v. McDonald, 347 S.W.2d 781 (Tex.Civ.App. — Beaumont, 1961, no writ); Perry Construction Company v. Watkins, 367 S.W.2d 913 (Tex.Civ.App. — Waco, 1963, no writ). The judgment of the trial court denying the plea of privilege is affirmed.
Defendant's contentions under its first point are directed at possible contributory negligence on the part of deceased, which may become a fact issue in the trial on the merits, but are inapplicable in the determination of venue. Perry Construction Company v. Watkins, Tex.Civ.App., 367 S.W.2d 913; Petrey v. Williams, Tex.Civ.App., 312 S.W.2d 383; Allen M. Campbell General Contractors, Inc. v. McDonald, Tex.Civ.App., 347 S.W.2d 781. The same may be true as to the second point, but in so far as the contentions in this point are related to those in the third point, they shall be considered by us. The fourth point is clearly multifarious, attacking as it does on a no evidence point eighteen different fact findings of the trial court. Sheffield v. Lewis, Tex.Civ.App., 287 S.W.2d 531; Grice v. Hennessy, Tex.Civ.App., 327 S.W.2d 629; Tatton v. Aransas County, Tex.Civ.App., 359 S.W.2d 200.