I respectfully dissent from the majority opinion herein. Fundamentally, the issue raised by a plea of privilege is one of venue and not of liability. The burden is upon plaintiff to show that he has a bona fide cause of action in the county where the suit is filed and that one of the exceptions set out in Art. 1995 is applicable. My esteemed colleagues in this case hold that the burden of proof rested upon the plaintiff to show "that the acts complained of as constituting a trespass was violative of and not in accordance with the specifications of his contract with the State Highway Company, an agency of the State." They cite Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93, as authority for this statement. The cited case holds among other things that the showing made on a hearing of a plea of privilege is determined in the ordinary way of disposing of fact issues, and the evidence introduced by both parties is to be considered. It expressly limits the facts to be determined on a plea of privilege hearing to "venue facts." Not even remotely is the cited case authority for the statement quoted from the majority opinion. In this case the plaintiff in order to maintain his suit against defendant in Gregg County alleged that the defendant was guilty of trespass in that county and invoked exception 9 of Article 1995 of the venue statute. When he made the proof, under his pleadings in the case, that defendant was guilty of active negligence in Gregg County, Texas, proximately causing the injuries complained of, he made a prima facie case against the defendant. The defendant introduced no evidence to rebut the prima facie case so made.
I have no criticism of that part of the opinion which holds that one who causes damage to another while engaged in making public improvements for the state is not liable therefor, if done in compliance with and according to his contract with the state. This principle of law is well settled and beyond cavil. It is equally well settled, however, that a party engaged in the performance of services for the sovereign authority is responsible for injuries done by him, due to his own negligence. It matters not whether the one performing the services was under contract to perform them for the State of Texas, the United States Government, or the King of Lilliput; if he negligently performs his duties, he is liable for any injuries accruing. No special sanctity cloaks him by reason of his employer being a sovereign authority. I am of the opinion that when the plaintiff established the venue facts set out under the exception to Article 1995 in question, he made a prima facie case in Gregg County; that the burden of proceeding then shifted to the defendant to rebut the showing so made. There is no presumption to be indulged that a contractor performing services for the state followed the plans and specifications of his contract and did the work as directed by it. The fact that he did not choose to introduce his contract or to show that he had performed his duties thereunder in accordance with the provisions of the contract is strongly persuasive that in doing what he was alleged to have done he was not acting according to the provisions of the contract. Surely the burden is not on the plaintiff to negative in his pleadings and proof possible defenses that might be urged.
In the Compton v. Elliott case, supra, we quote the following express holdings of the court:
"The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant's domicile, must allege and prove, if the defendant asserts his privilege, are those which are stated in the particular exception in article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff's petition. * * *
"The venue facts, therefore, which plaintiff is required to plead and prove, are *Page 768 that the crime or offense alleged was committed and that it was committed in the county where the suit is pending."
We offer also a brief excerpt from the case of Farmers' Seed Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 677, noting the distinction between a trial upon a plea of privilege and a trial upon the merits of the case: "The former is to determine whether the complaining defendant is suable on the transaction involved, where plaintiff filed the suit; the latter to determine defendant's liability on the transaction. The language of article 1995 is that `no person * * * shall be sued out of the county' of his domicile unless, etc. It does not contemplate that on a hearing on a plea of privilege any matters shall be tried other than such as are necessary to determine whether defendant is suable where the suit is filed. Article 2007, R.S., provides that, if plaintiff desires to resist the plea of privilege, he shall file a controverting plea under oath, setting out specifically the facts `relied upon to confer venue of such cause on the court where the case is pending.' The issue of venue, not liability, is thereby raised, when the affidavit is filed."
In my judgment the trial court correctly overruled the plea of privilege under the enumerated facts which showed the trespass to have been committed in Gregg County, and there not having been introduced any evidence on the part of defendant to contradict them.
Therefore, the judgment of the trial court should be affirmed.