Carle Oil Co. v. Owens

• Decision Date: 01 November 1939
• Docket Number: No. 10557.,10557.
• Citation: 134 S.W.2d 411
• Parties: CARLE OIL CO., Inc., v. OWENS.
• Court: Texas Court of Appeals

134 S.W.2d 411

CARLE OIL CO., Inc., v. OWENS.

No. 10557.

Court of Civil Appeals of Texas. San Antonio.

November 1, 1939.

Rehearing Denied December 13, 1939.

Appeal from District Court, Karnes County; S. B. Carr, Judge.

Action by A. R. Owens against the Carle Oil Company, Inc., for damages sustained as the result of an automobile collision. From a judgment rendered on special verdicts in favor of the plaintiff, the defendant appeals.

Affirmed.

Spears, Conger, Baskin & Spears, of San Antonio, for appellant.

H. H. Schuenemann, of Kenedy, and Wade & Wade, of Beeville, for appellee.

SLATTON, Justice.

A. R. Owens sued Carle Oil Company, Inc., in the District Court of Karnes County, to recover damages for personal injuries and damages to his automobile caused by a collision with his car and one belonging to the Oil Company.

A trial to a jury resulted in a special verdict in favor of Owens, and judgment was rendered thereon against the Oil Company for the sum of $1,110.33; hence this appeal.

The first two propositions assert error in the charge, in that the jury were permitted to consider mental pain suffered by Owens in arriving at the amount of damages, and that the pleadings of Owens limited his recovery to physical pain.

Owens averred his injuries as follows:

"His left eye and left side of his head were cut by pieces of glass, causing a deep laceration on the left side of his head near the eye, which caused him much pain and physical suffering, and which has caused permanent injury to the side of his head and the sight of his left eye.

"That his left arm and the muscles and ligaments of his left arm and shoulder were severely bruised, strained and torn, causing him much physical pain and suffering.

"That his neck was twisted and the muscles, ligaments and nerves in his neck and spine were wrenched and strained, causing continued soreness and much pain and suffering.

"That his left leg and especially the knee and just below the knee, was bruised, and the muscles and ligaments of his left leg, together with the bones and the joint, were strained in such a manner as to cause the plaintiff much physical pain and suffering, all of which injuries were caused by the negligence of the defendant, and that because of such negligence of the defendant, its agent, servant and employee, the plaintiff has suffered damages in the amount of One-Thousand ($1,000.00) Dollars, for the physical pain and suffering sustained by him in the past, and for which he will in all time to come in the future, sustain."

The appellee by the following paragraph, to-wit: "The plaintiff has suffered damages in the amount of one thousand dollars for the physical pain and suffering sustained by him in the past, and for which he will in all time to come in the future sustain." limited his recovery for damage sustained in virtue of physical pain and suffering sustained by him. Houston & T. C. R. Co. v. Rogers, Tex.Civ. App., 117 S.W. 1053. However, the trial court in the charge allowed the jury to consider the elements of mental and physical pain suffered by Owen to the trial, and such mental and physical pain that Owens may suffer in the future.

The appellant made the following objections: "Because in such paragraph A of question No. 7, the jury is permitted to such construction of the court to consider elements of damage not alleged by plaintiff nor proved by plaintiff in arriving at the amount of damage which they may arrive at in answering question No. 7, and therefore permits the jury to find damages not authorized by law in that it authorizes damages to be assessed in plaintiff's favor which have been neither plead nor proved."

Appellee insists that the objection is too general to point out the defect claimed on this appeal. We sustain appellee's contention. Panhandle & S. F. R. Co. v. Brown, Tex.Civ.App., 74 S. W.2d 531; Jackson v. Amador, Tex.Civ. App., 75 S.W.2d 892; Chase Bag Co. v Longoria, Tex.Civ.App., 45 S.W.2d 242; Abilene & S. R. Co. v. Herman, Tex.Civ. App., 47 S.W.2d 915; Baker Co. v. Turpin, et al., Tex.Civ.App., 53 S.W.2d 154, 155; Perkins v. Nevill, Tex.Com.App., 58 S.W.2d 50.

The appellant by its general objection to the charge "failed to comply with Art. 2185, R.C.S.1925, and the court's charge stands as if not objected to at all, and any errors therein could not be considered on appeal." Isbell et al. v. Lennox et al., 116 Tex. 522, 295 S.W. 920.

The appellee sought damages in his pleadings for physical pain in the sum of $1,000, and the jury assessed $800, therefore, it cannot be said that the sum allowed by the jury is beyond the scope of the pleadings so as to present fundamental error.

The third proposition asserts that the verdict of the jury does not support the judgment. The complaint is grounded upon the fact that the jury made no finding that the negligent acts of appellant's employee were committed within the course of his employment. The jury found:

a. That the truck belonged to appellant.

b. That Otto Eppler was driving the truck at the time of the accident.

c. That Otto Eppler was an employee of appellant at the time of the accident.

There was no evidence adduced that Otto Eppler, at the time of the accident was not acting within the scope of his employment.

In the case of Studebaker Bros. v. Kitts, Tex.Civ.App., 152 S.W. 464, 467, writ refused, it is said:

"It is the contention of appellant that, in order to recover, the burden rested on appellee not only to show that the automobile was the property of appellant and being operated by his servant, but that he was at the time acting within the scope of his employment. No such onerous burden rested on appellee when he proved the ownership of the car and that it was being negligently operated by a servant of appellant at the time of the accident, a prima facie case was established, and the burden was upon appellant to rebut it by proof that the servant was not acting within the scope of his employment."

The foregoing rule has been approved by our Supreme Court by the refusal of the application for writ of error. Under that rule of law and the record here presented, the findings of the jury quoted above support the judgment against appellant. If the appellant had, by competent evidence, rebutted the prima facie case made by appellee, then the trial court, upon proper request, should have submitted the issue of whether the servant was acting within the scope of his employment at the time of the accident. The case of Ormsby v. Ratcliff, 117 Tex. 242, 1 S.W. 2d 1084, and those following it, cited by appellant, are not considered controlling in this case.

The fourth and fifth propositions assert error in the submission of the question of damages to appellee's car. Appellee in his trial pleading claimed damages to his car in the sum of $310.33, alleged to be the cost of necessary repairs.

During the trial appellee filed a trial amendment alleging that the car was worth, immediately before the accident, the sum of $400, and immediately after the accident, the sum of $75; and alleging the amount of the repair expense necessary to place the car in the same condition as it was before the accident.

The trial court submitted the following issue and instruction:

"Question No. 8.

"From a preponderance of the evidence, what sum of money, if any, if paid now in cash, would be a fair and reasonable compensation to the plaintiff, A. R. Owens, for the damages, if any, sustained by plaintiff's Chevrolet pick-up, as a direct result of said accident, if any?

"Answer by stating in dollars, or nothing as you may find.

"Answer: $310.33.

"In connection with Question No. 8, you are instructed that the measure of damages, if any, to the automobile, is governed by the following rule of law, to-wit:

"(a) The difference, if any, between the reasonable market value of his, plaintiff's, Chevrolet pick-up, mentioned in his petition at the time of and immediately prior to said collision,...