The testimony of witness Jackman was similar, and was admitted over a like objection. James H. Robertson, for appellants, cited on pleading of privilege: Hilliard v. Wilson, 76 Tex. 180; Wettermark v. Campbell, 93 Tex. 523, and cases cited therein; Tignor v. Toney, 13 Texas Civ. App. 520[ 13 Tex. Civ. App. 520]; Stark v. Whitman, 58 Tex. 375; Raleigh v. Cook, 60 Tex. 442 [ 60 Tex. 442]; Cavin v. Hill, 83 Tex. 73, 80 Tex. 141, 20 Texas Civ. App. 127[ 20 Tex. Civ. App. 127]. On identification of the mortgaged cattle with those shipped: Oxsheer v. Watt, 91 Tex. 124; Avery v. Popper, 92 Tex. 337; Cleveland v. Williams, 29 Tex. 212 [ 29 Tex. 212]; Moss v. Sanger, 12 S.W. Rep., 616.
— The action of the defendant in error in levying on and taking possession of the partnership property of Jones Nixon, under the facts and circumstances in this case, constituted a conversion thereof; and the plaintiffs in error had a right to so treat the same and to prosecute their action for a conversion thereof; and the action of F.L. Nixon in causing the attachment proceedings to be quashed and the suit dismissed did not constitute a waiver of plaintiffs in error's right to maintain their suit for conversion of the partnership wood. Crawford v. Thomason, 53 Texas Civ. App. 563[ 53 Tex. Civ. App. 563]; Campbell v. Ulch, 24 Texas Civ. App. 618[ 24 Tex. Civ. App. 618]; Hofschulte v. Panhandle Hardware Co., 50 S.W. 608; Middlebrook v. Zapp, 79 Tex. 321 [ 79 Tex. 321]; Gunter v. Cobb, 82 Tex. 599; Summer v. Crawford, 91 Tex. 129; Currie v. Stewart, 26 S.W. 127; Wettermark v. Campbell, 93 Tex. 517 [ 93 Tex. 517]; Epps v. Hazelwood, 40 Texas Civ. App. 325[ 40 Tex. Civ. App. 325]; Hines v. Norris, 81 S.W. 792; Terry v. Webb, 96 S.W. 70. The wrongful seizure of plaintiffs in error's property for the debt of Nixon after notice of appellees' ownership warranted recovery of exemplary damages.
Wettermark appealed and questions were certified to the Supreme Court for decision. See Wettermark v. Campbell, 93 Tex. 517. The Court of Civil Appeals then reversed and remanded the case, and Adoue applies for writ of error.
It has been definitely settled, and rightfully so, that an action for injury or death caused by negligence, passive or active, cannot be sustained as an action upon an offense, crime, or trespass under the venue statute, unless it affirmatively appears that the defendant acted in person and not by agents. Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Brown v. Calhoun (Tex.Civ.App.) 22 S.W.2d 757. Moreover, we are of the opinion that under the facts alleged, even if the acts complained of were chargeable to appellant in. stead of his agent, the action does not rest upon a crime, offense, or trespass within the meaning of the ninth exception to the venue statute.
The Ricker-Shoemaker Case has been consistently followed. Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331. There was a tortious act committed in negligently permitting pieces of metal to be placed in the sacks containing the food for dairy cattle. It was a positive act.
It is also well settled that, in order to confer venue of a case in a county not the residence of the defendant under exception No. 9, based upon a contention that a trespass was committed in such county, some wrongful act must have been committed in that county, and not merely a tort resulting from the negligent omission to perform a duty. Active negligence, as distinguished from passive negligence, must be shown. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Jacobson v. Berwick, supra; Campbell v. Wylie (Tex.Civ.App.) 212 S.W. 980; Frnka v. Beaumert (Tex.Civ.App.) 290 S.W. 808. Examining the allegations contained in the plea in the light of these established rules, it clearly appears that they are insufficient. No specific act of negligence, either active or passive, is alleged.
We have carefully analyzed this testimony and have been unable to extract therefrom evidence sufficient to establish prima facie that the injuries sustained were due to a wrongful act committed, but, on the contrary, only prima facie to a tort resulting solely from the negligent omission to perform a duty without the intention to thereby inflict an injury to the person or property of appellee. Therefore appellee failed to establish the grounds of her controverting affidavit, namely, the commission of a trespass by appellants, or either one of them, by and through which the damages alleged to have been sustained by her were received. Cahn Bros. Co. v. Bonnett, 62 Tex. 674; Ricker, Lee Company v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Austin v. William Cameron Co., 83 Tex. 351, 18 S.W. 437; Guinn v. Texas Drug Co. (Tex.Civ.App.) 219 S.W. 507; Jacobson v. Berwick, supra; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331. Appellants' plea of privilege was erroneously overruled, therefore the judgment of said county court is reversed, and this cause remanded to that court, with instructions to transfer this cause to justice court precinct No. 7, Ellis county, Tex., as prayed for by appellants in their plea of privilege.
seems to be well established that where a party willfully or intentionally, by words spoken, acts done, or influences put in motion, causes another person injury, either to his person or property, same is, within the contemplation of the venue statute, a trespass. The rule which seems to have been adopted by our courts, as well as the courts of other states that have a venue statute similar to ours, is that a trespass within the contemplation of the venue statute embraces not only actions of trespass proper, as known to the common law, but also actions of trespass on the case where an injury has been willfully, intentionally, or negligently done by one party to the person or property of another. Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618; Cahn Bros. Co. v. Bonnett, 62 Tex. 674; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870; Geary v. Word (Tex.Civ.App.) 259 S.W. 309; Thompson v. Wynne (Tex.Civ.App.) 9 S.W.2d 745; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Ward v. Odem (Tex.Civ.App.) 153 S.W. 634; Brooks v. Hornbeck (Tex.Civ.App.) 274 S.W. 162; 26 R.C.L. 934. In Hill v. Kimball, supra, our Supreme Court held that a trespass, within the meaning of the venue statutes, included all injuries to persons or property which are the result of the negligence or of the intentional or willful action of the wrongdoer, and specifically held that the word "trespass" embraced not only actions of trespass proper, as known to the common law, but also actions of trespass on the case.
" See, also, Ricker et al. v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Wettermark v. Campbell et al., 93 Tex. 517, 56 S.W. 331; Rotan v. Maedgen et al., 24 Tex. Civ. App. 558, 59 S.W. 585; Winslow v. Gentry (Tex.Civ.App.) 154 S.W. 260; Campbell v. Wylie et al. (Tex.Civ.App.) 212 S.W. 980; Geary et al. v. Word (Tex.Civ.App.) 259 S.W. 309. From these authorities we think it clearly appears that, to constitute a trespass within the meaning of our venue statute, there must be an intentional wrong directed against or done in connection with the party suing, or there must be a negligent act from which an injury results to the party suing as the direct and proximate result thereof. There is no evidence in the record that appellants, or either of them, ever said a word to R. V. Wynne or any one else in reference to his wife, appellee herein.
"`Trespass,' as used in the provision quoted, has been construed as meaning to embrace `some wrongful act committed, and not merely a tort resulting from the negligent omission to perform a duty.' Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618; Winslow v. Gentry [Tex. Civ. App.] 154 S.W. 260. And under the above rule it is thought that suit may be brought in the county where the injury occurred, against whoever negligently, as alleged, drives an automobile whereby another is run over and killed.