Carey v. Pure Distributing Corporation

• Decision Date: 15 February 1939
• Docket Number: No. 7202.,7202.
• Parties: CAREY v. PURE DISTRIBUTING CORPORATION et al.
• Court: Texas Supreme Court

124 S.W.2d 847

CAREY v. PURE DISTRIBUTING CORPORATION et al.

No. 7202.

Supreme Court of Texas.

February 15, 1939.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Walter Carey against Pure Distributing Corporation and another for damages for personal injuries to plaintiff and his wife. Judgment for plaintiff against both defendants was reversed and judgment rendered for the defendants, 97 S.W.2d 768, and plaintiff brings error.

Judgments in accordance with opinion.

Jones & Kirkham, of Corpus Christi, for plaintiff in error.

John C. North, R. B. King, and Leslie S. Lockett, all of Corpus Christi, for defendants in error.

CRITZ, Justice.

This is a damage suit. It was originally filed in the District Court of Nueces County, Texas, by Walter Carey against Pure Distributing Corporation, a corporation, and one H. S. Johnson. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Carey against both defendants for $3500.00. On appeal by the defendants to the Court of Civil Appeals at San Antonio, this judgment, as a whole, was reversed, and judgment rendered for the defendants. 97 S.W.2d 768. Justice Bobbitt dissented, contending that the judgment of the district court should, as a whole, be affirmed. The case is before the Supreme Court on writ of error granted on application of Carey.

Carey sued the above-named defendants for damages for personal injuries resulting both to himself and to his wife, alleged to have proximately resulted from the negligence of the defendants. The Court of Civil Appeals, by a majority opinion, held that the alleged negligence of the defendants was, as a matter of law, too remote from the injuries of both Carey and his wife to justify a finding that such negligence was the proximate cause of such injuries. The dissenting opinion holds to the contrary. In our opinion, the facts of this case will justify a finding that the negligence of the defendants was not too remote from Carey's injuries to sustain this judgment in that regard, but that the contrary should be held as to the injuries of Mrs. Carey.

From the evidence in the record, and the finding of the jury, we are justified in concluding that the facts in this case are as follows:

On the 10th day of August, 1934, Walter Carey and his wife, Lillie Carey, were camped in the right of way of a public highway, at a point about twenty feet from the traveled portion thereof. Mrs. Carey was in their house car, and Walter Carey was outside. Attached to this house car was an awning or canvas, supported at one end by the roof of the house car and at the other end by means of poles driven into the ground. On the above date, about nine o'clock in the evening. Carey was lying on a cot under the above-described awning, and Mrs. Carey was lying on a bed inside the house car. At the time, Mr. and Mrs. Carey were conversing with each other through a window in the house car. At this time, a truck owned and operated by Pure Distributing Corporation, and driven by H. S. Johnson, was being driven along and upon the highway on which the Careys were camped. When the truck arrived at a point near where the Careys were camped, a 10-gallon can of oil fell therefrom and struck the ground. When such oil can struck the ground, the top thereof blasted off and flew through the air, and struck Walter Carey while he was lying on the cot under the awning, at the place above detailed, causing a very severe head wound.

Mrs. Carey, while lying on the bed inside the house car, as above indicated, heard the noise and commotion incident to the injury to her husband, saw something fly through the air, and heard her husband say that he had been hit on his head, and that his head had been caved in. Mrs. Carey instantly concluded that her husband was being attacked, jumped up from her bed, stumbled, secured a pistol, and went to the house car door. When Mrs. Carey got to the door where she could see her husband, he was all bloody. The injury to her husband, the excitement caused by the injury, and the attendant circumstances caused Mrs. Carey, who was then three months advanced in pregnancy, to miscarry. Mrs Carey received no direct injuries from the oil can. All of her injuries resulted from excitement and fright caused by seeing her husband's injury, and its attendant circumstances.

With reference to the negligence of the defendants, the evidence shows the following facts:

That Pure Distributing Corporation was the owner of the truck in question; that H. S. Johnson was, at the time of the accident, the driver of such truck, and the employee of the Pure Distributing Corporation; that the truck, at the time of the accident, was being driven along the highway on which Carey and his wife were camped, in furtherance of the...