This suit was instituted by appellee against the appellant bank and Lee G. Carter, in the district court of McLennan county. Both defendants filed pleas of privilege, and asked that the cause be transferred to Cherokee county, the domicile of the corporation, and the residence of the individual defendant. Controverting pleas were filed by the plaintiff, and, upon a hearing, the court sustained the plea of privilege of Carter and overruled the plea of the bank. However, upon the announcement by the judge that it was his intention to sustain the plea of privilege of Carter, the plaintiff moved the court, orally, to dismiss his suit as to said defendant, and the court later sustained his written motion to that effect. The bank has appealed from the order entered on this hearing.
[1] The first question that will be' discussed is the claim that the controverting *808plea was insufficient, because it did not specifically allege the facts relied on to confer venue upon the courts of McLennan county, as required by the statute. In the verified controverting plea, the plaintiff pleaded that the suit was founded upon an offense and trespass committed by the defendants, consisting of threats of criminal prosecution, and the abuse and other overt acts more fully set out in the petition, to which reference was made. A similar allegation was made under the claim that the defendant bank was a private corporation, and that the cause of action, or a part thereof, arose in McLennan county. The effect of this was to make the averments of the petition part of the controverting plea, and, we think, was a substantial compliance with the statute. Indeed, there is much to commend the practice where the facts are so fully pleaded in the petition. We have no doubt that, if the plaintiff had attached a copy of the petition to his controverting plea as an exhibit, and had sworn that the facts therein alleged were true, it would have met the purposes of the statute. We see no difference where the facts alleged in the petition are expressly made a part of the controverting plea. Morgan v. Johnson, 15 Tex. 569; Gray v. Steedman Bros., 63 Tex. 95 ; Huffman v. Hardeman (Sup.) 1, S. W. 575.
[2] The next point to be discussed is the contention that the trial court should not have permitted piaintiff to dismiss as to the defendant Carter, it being claimed that the court was without jurisdiction so to do. Our statutes provide that a plaintiff may take a nonsuit at any time before the decision of the court is announced; and also that a plaintiff may discontinue his suit against any one or more defendants, where no cross-action or affirmative relief is sought by said defendants and when the discontinuance would not operate to the prejudice of the other defendants. It is true that our venue statute, as amended, provides that when a plea of privilege is sustained the cause shall not be dismissed, but shall be transferred to the proper court. It is not believed, however, that it was the intention of the Legislature to prevent the full operation of the statutes as to nonsuit and discontinuance. Under the former practice, when a plea of privilege was sustained the case was dismissed. The history of the amendment convinces us that its purpose was to prevent a dismissal by the court, and not a voluntary dismissal by the plaintiff, when he does not choose to follow up his suit against a defendant whose plea of privilege has been sustained. There could be no valid reason assigned for denying plaintiff the right to discontinue his suit when the venue has been transferred. Ordinarily a defendant could not complain at such action. In this case it is clear that no injury was done either defendant. Nor do we see that the court was lacking in jurisdiction to enter the order of dismissal. District courts are courts of general jurisdiction, and the court had the power, if it desired to do so, to sot aside the order sustaining the plea of privilege of the one defendant and to permit a nonsuit or discontinuance as to him. This was substantially what was done, if not in form.
We are not required in this case, however, to rest the decision on this point upon the view above expressed. The record shows that, when the court announced his intention to sustain the plea of privilege of Carter, but before he had entered any order to that effect, or announced his final decision thereon, the plaintiff asked leave to dismiss his suit as to that defendant. The court announced that plaintiff would be granted time to file a written motion, and both parties would be given time to present authorities. The written motion was thereafter filed, and the following day the court sustained the motion to dismiss. We think it is immaterial that the entry of the order sustainng the plea of privilege of Carter preceded the entry of the order allowing the dismissal. Tlaintiff had previously, in open court, and before the decision of the court was actually announced, sought a discontinuance as to such defendant. His right to discontinue the suit could not be prejudiced or affected by a subsequent decision and order sustaining the plea of privilege. Weil v. Abeel, 206 S. W. 735, and authorities there cited; Luter v. Ihnken, 143 S. W. 675; Bates v. Hill, 144 S. W. 288; Rutledge v. Evans, 219 S. W. 218. In the last-cited case, the court held that, where actions were severable, the court may sustain the plea of privilege as to one of the defendants, and transfer the cause as to him, but hold it for trial as to the other defendant.
[3] Appellant has raised several interesting questions as to the failure of thd proof to show that Mr. Carter, as attorney for the bank, had authority to do the alleged wrongful acts in behalf of the bank; and also the inadequacy of the evidence to show that the bank had ratified or acquiesced in his actions. It is not thought proper to express any opinion upon these matters, as they are questions for determination upon the trial of the case on its merits.
[4] Upon the hearing of the pleas of privi-. lege, it devolved upon the plaintiff only to plead a cause of action arising in whole or in part in McLennan county, or an offense or trespass committed in that county, and to prove that the acts relied upon, or a part of them, occurred there. In such a proceeding it is not necessary to prove all the elements finally fixing liability upon the defendants. It was sufficient for the plaintiff to plead a cause of action, and to prove that it arose in whole or in part in the county whore the suit was brought, or that the *809alleged trespass was committed there. At most, it was only necessary to show a probable recovery. We think the showing was sufficient to justify the conclusion and judgment of! the trial court.
[5] It is claimed by appellant that no offense or trespass was alleged by plaintiff within the meaning of the venue statute; and also that no cause of action in whole or in part arising in McLennan county was alleged. As to the first of these contentions, we are strongly inclined to the view that this is a case of trespass under the doctrine announced by the Supreme Court in Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618. It is true that the court, in the later case of Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645, qualified the former case in respect to certain expressions therein. Nevertheless, Mr. Justice Gaines, speaking for the court in the Ricker Case, stated that:
“The words ‘when the crime, offense, or trespass was committed’ indicate that the word trespass was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do a duty.”
The holding was that a mere negligent omission would not constitute a trespass. Here the petition alleges no mere negligence, but acts claimed to have been committed .wantonly and deliberately, resulting in the impairment of plaintiff’s health and in physical injuries. It is not believed that the authorities in this state justify appellant’s contention that force is a necessary element in a trespass case. We prefer, however, not to rest the decision alone upon this exception to the general venue statute.
[6] Plaintiff also invoked, the exception which authorizes a suit against a private corporation to be instituted where the cause of action, or a part thereof, arose. Under the evidence, the acts chiefly resulting in the injuries alleged by plaintiff were performed, if at all, in McLennan county. Therefore, under the pleadings and the evidence, the trial court, for this reason also, was warranted in holding that the venue was properly laid in McLennan county.
We have carefully considered all the assignments in the brief, and conclude that no reversible error has been shown. The judgment will be affirmed.
Affirmed.
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