The opinion
STEPHENSON, Justice,
concurring.
I concur with the action of the majority in affirming the venue appeal.
I agree with the majority in finding the so-called plea in abatement to be a plea in bar. However, I do not agree with the disposition of the cause of action against the company. I would enter a judgment that plaintiff take nothing against the company.
The trial court heard evidence as to the so-called plea in abatement. As stated in the majority opinion, the questions raised were whether or not .plaintiff filed his grievance within seven days after the grievance came into existence or was waived. Plaintiff had notice that the court would *401 try those issues and made no complaint. These were questions which went to the heart of plaintiff’s cause of action and not merely a matter of the sufficiency of the allegations which could be cured by amendment. The company’s pleadings did not merely raise dilatory matters which would abate the trial until some other action had been taken. More than seven days had passed and if plaintiff had not filed his grievance or the necessity for filing had not been waived, there was nothing plaintiff could do.
Plaintiff attempted to show it was his Union’s responsibility and he personally could not be held accountable. He cites Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967), to support his position. That case is clearly distinguishable from the one before us. The contract in that case provided that only the Union could file a grievance while in our case the contract provides that either the Union or the plaintiff could have filed his grievance.
I would take the action taken by the Court of Civil Appeals in Whelan v. Killingsworth, 537 S.W.2d 785, 787 (Tex. Civ. App. — Texarkana 1976, no writ), and reform the judgment of the trial court to provide that plaintiff take nothing as to the company.