(dissenting).
I respectfully dissent. The holding in this venue case is in conflict with the holding in the venue case of Pan American Fire and Casualty Company v. Loyd, 411 S.W.2d 557 (Tex.Civ.App.1967, no writ). In both cases, the plaintiff, an insured in an automobile liability policy, was involved in a collision with an alleged uninsured motorist. The insured plaintiff in each case filed suit seeking to invoke the uninsured motorist provisions of the automobile liability policy, which had been issued by his insurer, and, which was in full force and effect at the time of the collision. In each case, the Court of Civil Appeals held that the burden of proof rested with the plaintiff to establish that the defendant was an uninsured motorist within the meaning of the “Uninsured Motorist Insurance” provision of the policy issued by his' insurer. On this phase of proof, there appears no conflict upon the face of the opinions. Such conflict appears on the question of the burden of proving negligence on the part of the uninsured motorist. In Pan American, the court recognized that the insurer’s agreement to “pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * * * ”, involves the concept of negligence. The court held:
“Under the terms of the endorsement * * * this required proof by a preponderance of the admissible testimony, that deceased Cofer was an uninsured motorist, a condition precedent to proof of a cause of action under the terms of such endorsement. The other requirement, of course, was that appellee must prove by a preponderance of the evidence Cofer was negligent upon the occasion in question and that such negli*67gence was a proximate cause of the damages sustained by appellee.” Emphasis added.
While the court reversed the judgment of the trial court on the ground that the plaintiff failed to discharge his burden of proving that Cofer, the defendant, was an uninsured motorist, nevertheless, the court made it clear that upon another trial it would be necessary for the plaintiff to prove negligence and proximate cause.
Turning now to the opinion of the Court of Civil Appeals in the case at bar, it is clear to me from the language used in the opinion, that the holding is that it was unnecessary for the plaintiffs to prove neglience and proximate cause. In other words, the court has held that plaintiff’s only burden was to prove that the defendant was an uninsured motorist. The court held:
“Appellees [Plaintiffs] proved that Young [Defendant] was an uninsured motorist, that he was involved in an accident with appellees in Bowie County, Texas, and, that appellees suffered damages. They also plead and proved their uninsured motorist insurance coverage and offered in evidence the insurance policy that was issued to them in Bowie County, Texas. The evidence is sufficient to sustain the judgment of the trial court.”
The court cited Pan American in support of its holding. The test announced by this Court in State v. Wynn, 157 Tex. 200, 301 S.W.2d 76 (1957) does not, in order to show conflict, require a recitation in the opinion that proof of negligence and proximate cause is not necessary. The conflict appears on the face of the opinion just as though the Court in the present case had said that negligence and proximate cause need not be proved. In legal effect, the Court of Civil Appeals in the present case has so held. These conflicting holdings present a conflict in rulings sufficient to give this Court jurisdiction. This Court bases its holding that no conflict exists on pure speculation as to the quantum of proof offered by the plaintiff in the trial court prior to the entry of the default judgment. In other words, this Court’s judgment relieves the plaintiffs of their burden of proving negligence and proximate cause in the plea of privilege hearing, in effect, agreeing with the Court of Civil Appeals. This is the question to be decided, once the Court takes jurisdiction. In my opinion, the Court has jurisdiction to pass upon the issues raised in the plea of privilege and the controverting affidavit.
The controverting affidavit reflects that the plaintiffs relied upon exceptions 9a, 23 and 28, of Article 1995, Vernon’s Annotated Civil Statutes to sustain their position that the suit against Pioneer was properly brought in Bowie County, Texas. The Court of Civil Appeals fails to specifically state which exception is applicable. The Court here deals with the question as though the Court of Civil Appeals based its judgment solely on exception 23. Pioneer has points in its application for writ of error that the holding of the Court of Civil Appeals is in conflict with decisions regarding exceptions 9a and 28. Pioneer is entitled to have these points passed upon before judgment is entered denying jurisdiction.
GREENHILL and POPE, JJ., join in this dissent.