(dissenting).
In my opinion, the trial judge should not be reversed for overruling the plea in abatement concerning venue.
A part of the testimony of the witnesses for Loveman’s was directed towards the policy or operation of the company concerning its agents or employees selling outside of the store in Montgomery. Such witnesses testified that its salesmen, agents and employees had no authority to make sales or even to solicit or perform services outside of the store building with only a few rare exceptions. Mr. Unger, the manager of the store in Montgomery, stated that such policy or operation was the same throughout the entire time that he had been connected with the store. Mr. Mulvaney (the witness for the appellee-plaintiff) was employed during a period of four months while Mr. Unger was manager. Mr. Mulvaney’s testimony about the policy or operation concerning salesmen outside the store and throughout South Alabama, including Pike County, was in direct conflict with the testimony of said manager of the store. This part of Mulvaney’s testimony concerned the policy about salesmen, not what his individual authority was. It was also rebuttal evidence. Thus, the trier of facts had the right to determine the policy of the appellant-defendant corporation pertaining to its salesmen outside the Montgomery store and in Pike County.
Mulvaney testified that such policy was, in effect, the same as any good salesman policy; that if a salesman knew of a sale anywhere, he goes out and gets it; that a salesman would not necessarily be sitting around and waiting for customers to come into the store; that if a prospective customer came in the store and displayed an interest, the salesman could solicit the prospective customer outside the store. This testimony was in direct conflict with what Mr. Unger, the manager, had stated, pertaining to the policy. Mulvaney testified that there was no policy prohibiting a salesman from going outside the store and soliciting. Unger testified that there was. Mulvaney was asked if the company had any particular policy pertaining to salesmen’s authority. He answered that he didn’t know of it other than the fact that there was no policy against soliciting business outside of the store.
The matter of records should also be considered. The trier of facts could conclude from the testimony of Mulvaney that no company records of visits in prospective customers’ homes were made pertaining to solicitations of sales where no sale was made. Such a conclusion is supported by inferences from the testimony of appellants’ witnesses.
Mulvaney was employed in the Home Furnishings Department which involved the sale of carpets, draperies, furniture and appliances, including TV sets. In connection with the sale of carpets, Mr. Mulvaney testfied that he would show carpet samples and measure for carpets in the prospective customer’s home and hopefully close the sale at that time. He stated he carried written contract forms with him and that if the sale was made, the contract would be signed there in the home. This was in conflict with the testimony of the witnesses for appellants.
The manager of the Home Furnishings Department, William Schuchman, testified concerning the activities of salesmen in his department, among other things. He stated that salesmen would go into prospective customers’ homes, make measurements, and *395give assistance as to information concerning color and grade of carpets. He testified that this would be true in Pike County and any other county where Loveman’s did business. He also testified that the business of advising on the grade and color of carpets is part of a sale. He testified that it was the policy of Loveman’s that if anyone came in from Troy and wanted assistance in the installation or selection of draperies and carpets that Loveman’s would send someone down to Troy to assist him in the selection. He testified that this would be true of any county in South Alabama.
Schuchman was asked if he had ever sent a salesman into Pike County to measure for carpet. He stated he couldn’t answer that. The trial judge could have concluded that there was an absence of proof in this connection even in view of later testimony by Schuchman that he didn’t remember sending a salesman into Pike County.
It is important to remember that the burden of proof on a plea raising the question of venue is upon the defendant corporation. Section 60, Title 7, Code of Alabama 1940; Southern Guardian Life Insurance Co. v. Freeman, 283 Ala. 429, 218 So.2d 143; 16 Ala.Digest, Pleading ^111.39; Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441, and cases cited therein.
In addition to the matters that we have set forth, there was testimony that an essential part of the business of selling merchandise was the delivery service. There was testimony that Loveman’s had regular scheduled deliveries into Pike County on Wednesday of each week. Other activities of the appellants affecting Pike County are set out in the majority opinion.
The trial judge had the opportunity to observe the demeanor of the witnesses. Certainly a trier of facts had the right to determine the credibility of evidence including the testimony that the only thing a TV deliveryman did was to plug in the TV set and he could not make any adjustments on it.
Bearing in mind the conflicts in testimony, the absence of proof, the burden of proof, the evaluation of the creditability of the witnesses, and the evidence of the activities of the appellants in and affecting Pike County, I feel the trial judge did not abuse his discretion in overruling the plea in abatement. I would affirm on this issue.