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Marathon Corp. v. Pitzner8/2/2001
's finding that Marathon's negligence caused Pitzner's injuries. Appellant's fourth issue is overruled.
e. Sole Responsibility
In its fifth issue, Marathon asserts the evidence is legally insufficient to support the jury's finding that Marathon was 100 percent responsible for Pitzner's injuries. The jury was asked if the negligence, if any, of Pitzner, York, Marathon, ECSI or Hull proximately caused the occurrence in question. The jury answered in the affirmative only as to Marathon.
If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa Plastics, 960 S.W.2d at 48; Stafford, 726 S.W.2d at 16. As noted above, there is more than a scintilla of evidence showing that Marathon retained control over Pitzner's ability to safely perform the job Marathon required him to do, compelling Pitzner to use a screwdriver to turn on the compressor in order to complete the task. We have held the evidence is legally sufficient to show that Marathon proximately caused Pitzner's injuries. Therefore, there is more than a scintilla of evidence to show that Pitzner's negligence, if any, did not proximately cause his injuries.
As to York, there is simply no evidence at all in the record that York was negligent in any manner.
Marathon argues that Hull and ECSI were negligent in their installation of the units too close together and in failing to install a disconnect switch on the units. However, the Dallas city building code specifically provides that the owner or lessor is ultimately responsible for obtaining all the proper permits. If Marathon had obtained the proper permits, any negligence by Hull and ECSI would have been discovered by building inspectors and Marathon would have had to correct these deficiencies. Therefore, there is more than a scintilla of evidence showing that Marathon's negligence alone was the proximate cause of Pitzner's injuries. Appellant's fifth issue is overruled.
D. Venue
In its sixth issue, Marathon complains the trial court erred in denying its motion to transfer venue to Dallas County. Appellee contends that Marathon waived its venue contest by failing to present those issues to the trial court.
1. Procedural History
The instant case was filed on August 7, 1995, just before the effective date of amendments to the venue statute. Therefore, the law in effect on the date of filing will govern. Tex. Civ. Prac. & Rem. Code Ann. § 15.001 (Vernon Supp. 2001), (historical and statutory notes ("A suit commenced before September 1, 1995, is governed by the law applicable to the suit immediately before the effective date of this Act, and that law is continued in effect for that purpose.")).
Appellee pleaded venue was proper in Hidalgo County under former Texas Civil Practice and Remedies Code section 15.037, which provided:
oreign corporations . . . not incorporated under the laws of this state, and doing business in this state, may be sued in any county in which all or a part of the cause of action accrued, or in any county in which the company may have an agency or representative . . . . Act of March 7, 1995, 74th Leg., R.S., ch. 4, § 1, 1995 Tex. Gen. Laws 27, repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 981.
Appellee pleaded that York maintained an agent or representative in Hidalgo County. The former version of section 15.061 of the civil practices and remedies code in effect at the time provided:
hen two or more parties are joined as defendants in the same action and the court has venue of an action or claim against any one defendan
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