Bailey v. Woodrum Truck Lines

• Decision Date: 13 December 1930
• Docket Number: No. 12394.,12394.
• Citation: 36 S.W.2d 1090
• Parties: BAILEY v. WOODRUM TRUCK LINES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

36 S.W.2d 1090

BAILEY v. WOODRUM TRUCK LINES.^*

No. 12394.

Court of Civil Appeals of Texas. Fort Worth.

December 13, 1930.

Rehearing Denied January 17, 1931.

Appeal from District Court, Denton County; B. W. Boyd, Judge.

Suit by F. G. Bailey against the Woodrum Truck Lines. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Robert H. Hopkins, of Denton, and W. F. Smith, of Oklahoma City, Okl., for appellant.

Collins & Houston, of Dallas, and Sullivan, Speer & Minor, of Denton, for appellee.

On Appellee's Motion to Dismiss Appeal.

BUCK, J.

Appellee has filed a motion to dismiss the appeal in this case on the ground that the order overruling appellant's motion for a new trial was made on the 20th day of December, 1929. Court adjourned on the 21st day of December, 1929. The appeal bond was filed on the 11th day of January, 1930. Article 2253 of the Rev. Civ. Statutes of 1925, as amended by the Fortieth Legislature, c. 15, p. 21, § 1, requiring the filing of appeal bonds, reads as follows:

"An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county."

It is urged that the filing of the bond within 20 days after adjournment of court is jurisdictional. Kolp v. Shrader (Tex. Civ. App.) 168 S. W. 464; Hartsough-Stewart Const. Co. v. Harty & Vogelsang (Tex. Civ. App.) 183 S. W. 1; Edens v. Cleaves (Tex. Civ. App.) 206 S. W. 722. It is urged that the statute extending the time for filing to thirty days applies only when the term of court at which the case is tried lasts more than eight weeks, and has no application in this case. Rose Mfg. Co. v. Shahady, 258 S. W. 207, by the San Antonio Court of Civil Appeals.

Appellant has filed a reply to the motion, in which the attorney for the appellant makes this affidavit:

That the appellant was at the time of the trial a resident of Weslaco in Hidalgo county Tex.; that at the time of the institution of this suit he was a resident of Seminole, Okl.; that, immediately after the motion for a new trial had been overruled in said cause and notice of appeal given to this court, the attorney for appellant prepared an appeal bond and mailed the same to the appellant at Weslaco, Tex., and that the same was executed by the appellant and his sureties and returned to his attorney within due course; that appellant's attorney does not remember the exact date on which the same was returned to him, but does make oath that he received the same at Denton, Tex., several days before the 10th day of January, 1930, and that, immediately upon receipt of the same he took the same to the district clerk and presented the same for approval, inasmuch as the bond had been made without the county; that the appellant had the same certified by the proper officer in Hidalgo county as to the solvency of the sureties, and this matter was discussed with the clerk at the time of the delivery of said bond to him, and he stated that under said certificate he was satisfied as to the solvency of said sureties; that said bond was left with the clerk, the exact date is not known to affiant, but he does state that it was several days before the 10th day of January, 1930, and is under the impression that it was prior to, or just after, January 1, 1930, and he presumed that the same was filed as of that date and that he did not learn until this motion was filed that the same showed to have been filed as of date January 11, 1930.

Affiant further states that, at the time he left the bond with the clerk, he stated to him that he desired the bond filed within twenty days after the date of the court's adjournment, and if the clerk desired to make any further investigation as to the sureties thereon, that it would be all right with the appellant, but that the same must be filed within the twenty days, and the clerk then stated that he was satisfied from the certificate accompanying said bond that said sureties were sufficient. Affiant further states upon oath that said bond was duly deposited with, and approved by, said clerk long before January 10, 1930.

We think that this affidavit makes it apparent that the bond was filed within twenty days after the adjournment of the court.

A mortgage is "filed," within Wilson's Rev. & Ann. St. Okl. 1903, § 1284, when it is delivered to the proper officer and by him received for the purpose of being recorded, and the neglect or mistake of the register of deeds in recording the instrument does not affect the mortgagee. Covington v. Fisher, 22 Okl. 207, 97 P. 615, 617. A paper or document is said to be "filed" when it is delivered to the proper officer and lodged by him in his office. Barber Asphalt Paving Co. v. O'Brien, 128 Mo. App. 267, 107 S. W. 25, 29. A paper is "filed" when it is delivered to the proper officer and by him received to be kept on file. See authorities cited in 2 Words & Phrases, Second Series, p. 531.

Therefore the motion to dismiss is overruled.

DUNKLIN, J., absent and not sitting.

* Writ of error granted.

On the Merits.

DUNKLIN, J.

A collision occurred between an automobile driven by F. G. Bailey and a Ford truck owned by the Woodrum Truck Lines, a copartnership composed of J. B. Woodrum and Elbert Woodrum. At the time of the collision O. W. Hampton, an employee of the partnership firm, was driving the truck which was then being used in the prosecution of the firm's business. The collision occurred on the highway connecting the cities of Denton and Gainesville, while Bailey was traveling in a northerly direction and the truck was traveling in a southerly direction. The two cars met and collided with each other on the west edge of the paved highway, and, as a result thereof, both were damaged and both drivers sustained personal injuries.

This suit was instituted by Bailey against the owners of the truck to recover damages for his personal injuries and for injury to his car, and he has prosecuted an appeal from a judgment denying him any relief.

In answer to special issues submitted, the jury returned findings that the driver of the truck was not guilty of the negligence on which plaintiff based his suit in the manner he was operating the truck just prior to, and at the time of, the collision. There were further findings that plaintiff was not guilty of the alleged contributory negligence on his part, which was pleaded by the defendant, and that the collision was an unavoidable accident.

Issue No. 4 was the one embodying the defense of unavoidable accident, which was submitted with express reference to this definition given in paragraph 5 of the charge:

"An unavoidable accident as that term is used in this charge is one which could not have been foreseen and prevented by a person by the exercise of ordinary diligence, and being one that results without fault on the part of either party."

Plaintiff objected to the submission of that issue in the following language:

"The evidence in this case does not raise the issue of unavoidable accident and the court erred in the 5th paragraph of his charge wherein he defines unavoidable accident, and he also erred in submitting special issue No. 4 in his charge, for the reason, as before stated, the evidence in this case does not raise these issues."

"Unavoidable accident" is a legal phrase applicable to different situations, and when used in the court's instructions to a jury it becomes necessary to give further instructions in order that it may be properly applied in determining the issues of fact involving that defense. Hence we fail to perceive the necessity of using the term "unavoidable accident" in submitting that defense to a jury; it being the duty of the court to submit to the jury separately a fact or group of facts upon which a finding may be made which will show a right of recovery on the part of the plaintiff or a defense to that right on the part of the defendant. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Id. (Tex. Civ. App.) 196 S. W. 647, 648, and authorities there cited. Indeed, we believe it to be the better practice to submit the issues of fact involved in the defense of assumed risk and omit the use of the term as being unnecessary, and possibly tending to impress the jury with the fact that the truck driver owed to plaintiff a higher duty than the exercise of ordinary care to avoid the collision.

The observation just made is illustrated in the decision of our Supreme Court in G., H. & S. A. Ry. Co. v. Washington, 94 Tex....