Cedziwoda v. Crane-Longley Funeral Chapel

• Decision Date: 12 November 1954
• Docket Number: No. 14853,CRANE-LONGLEY,14853
• Citation: 273 S.W.2d 455
• Parties: Oscar CEDZIWODA, Appellant, v.FUNERAL CHAPEL, Appellee.
• Court: Texas Court of Appeals

Page 455

273 S.W.2d 455

Oscar CEDZIWODA, Appellant, v. CRANE-LONGLEY FUNERAL CHAPEL, Appellee.

No. 14853.

Court of Civil Appeals of Texas, Dallas.

Nov. 12, 1954.

Rehearing Denied Dec. 10, 1954.

Harold B. Berman and Donald L. Gould, Dallas, for appellant.

Thompson, Knight, Wright & Simmons, Pinkney Grissom and David M. Kendall, Jr., Dallas, for appellee.

YOUNG, Justice.

Appellant as plaintiff in trial court has sued defendant Funeral Home, a Texas corporation, for damages growing out of personal injuries suffered by him while riding in defendant's ambulance. The said vehicle of defendant, at the same time, was transporting a sick person (Miss Coble) from the Medical Arts Building to St. Paul's Hospital and on the way became involved in a collision with another car. At close of testimony adduced by plaintiff to a jury, defendant interposed a motion for peremptory instruction, which, upon hearing, was sustained and judgment rendered that plaintiff take nothing. The appeal has followed in due course.

First to be noted are findings of fact and conclusions of law made and filed by the court at instance of appellant; a procedure appropriate only to nonjury trials, Rule 296, Texas Rules of Civil Procedure. In this, a case going off on peremptory instruction, we are duty-bound to consider appellant's contention that issuable facts exist for jury determination in light of the record, without reference to these findings. Farr v. Kirby Lumber Corp., Tex.Civ.App., 203 S.W.2d 815; Cox v. Rhodes, Tex.Civ.App., 233 S.W.2d 924.

In summary, plaintiff, in amended original petition, alleges: That on July 23, 1952 Miss Bernice Coble was a patient at Samuell Clinic and on orders of her physician was being transferred to St. Paul's Hospital, and although bedridden, her case was not of an emergency nature; plaintiff upon request of Miss Coble consenting to accompany her on such trip; that 'defendant maintains and operates a fleet of ambulances or other vehicles which it makes available to the public for hire to transport said bedridden patients and their attendants from one place to another,' one of its ambulances responding to the call; being hired to transport both plaintiff and Miss Coble to the hospital and undertaking to do so; that defendant was a common carrier as a matter of business and for compensation; on the trip plaintiff taking a seat in the ambulance reserved for passengers, in no way contributing to the collision which followed at Bryan and Pearl Streets. Numerous particulars of negligence were alleged; for example, failures as regards lookout and warning signals; also excessive speed, driving as an emergency vehicle in violation of Dallas Traffic Code or under circumstances where a reasonably prudent person would not have done so, etc. Damages sought were in amount of $8,058.25, for injuries allegedly serious and from which he still suffers.

Defendant in answer pled that on the occasion in question it sent an ambulance to Medical Arts Building in response to a call for transportation of a patient (Miss Coble) to St. Paul's Hospital; being informed that her condition was serious and that time was of the essence; that present in said ambulance were a driver and helper, trained and competent to drive said vehicle and care for patients carried therein, plaintiff entering same solely of his own volition, benefit and convenience; defendant receiving no compensation therefor and expecting none; that in consequence, the carriage of plaintiff was a mere gratuity, making him a guest within meaning of art. 6701b, Vernon's Annotated Civil Statutes, and not entitled to recover on grounds of ordinary negligence as alleged; further that the movement of a third party automobile was the sole proximate cause of said collision and that the role of plaintiff on the occasion was that of a volunteer or licensee who had assumed the risk of riding in an ambulance engaged, as it was, on an emergency mission.

Material to the points advanced for reversal is the testimony of plaintiff, also of Leonard Longley, Vice President, defendant company; in substance, as follows: (Oscar Cedziwoda) That on the particular afternoon Miss Coble had gone to the Medical Arts Building, driving her own car, phoning plaintiff from Samuell Clinic that she was being ordered to St. Paul's Hospital, requesting that he go along; that on arrival, Miss Coble was lying on a roll-away bed, appearing normal, without pain; admitting on cross-examination, however, that her condition was later determined to be serious; that she decided to take an ambulance to the hospital and requested him to call one, which he did through a nurse; that there was no rush to get Miss Coble to the hospital, the ambulance arriving some thirty minutes later, plaintiff introducing himself to defendant's employees in charge, telling them he was going to ride with her. That two small metal seats were located within the ambulance, alongside the patient, one of which he occupied; that defendant's vehicle commenced traveling at an excessive speed through heavy traffic, running a red light at Bryan and Pearl Streets and into a car going south.

Mr. Longley, Vice President, defendant corporation, testified in effect that they were in the business of transporting patients upon call from one section of Greater Dallas to another for a charge of $5 per patient; that a friend or relative was permitted to accompany the patient, charge being made for the latter only; such third person rendering no service to defendant, the ambulance having a driver and attendant for all assistance necessary; that the vehicle was equipped with two seats for this kind of accommodation, on numerous occasions carrying along a third party who desired to ride, billing the patient only for the trip; that the particular call was for ambulance service to Miss Coble at the Medical Arts Building for removal to hospital, defendant not knowing who, if any one, was to accompany her.

The following points are advanced as grounds for reversal of cause: Error of the trial court (1) 'in using the Texas Guest Statute to defeat the plaintiff's cause of action because the transaction involved here was obviously not one intended to be covered by this statute'; (2) 'in holding that the statute applied to the plaintiff because the plaintiff clearly was not a guest under any interpretation of the Texas Guest Statute'; and (3) 'in granting a directed verdict for defendant because the plaintiff was clearly an invitee of the defendant and not a mere licensee.' The trial court has properly held, argues appellee in reply brief, (1) 'that the operator of an ambulance service is not a public carrier as that term is used in the Texas Guest Statute'; further, that the court correctly instructed a verdict for defendant, (2) 'Since appellant failed to plead and prove sufficient facts to establish that appellee was a public carrier and that appellant's alleged cause of action was not barred by the Texas Guest Statute'; (3) 'since the appellant failed to plead and prove sufficient facts to establish that there existed between him and the appellee the relationship of public carrier and passenger and that his alleged cause of action was not barred by the Texas Guest Statute'; (4) 'since the uncontroverted evidence showed that appellant was a guest of appellee, as that term is used in the Texas Guest Statute, and was not entitled to recover for ordinary negligence'; and (5) 'since the uncontroverted evidence showed that appellant was a mere licensee.'

Article 6701b, V.A.C.S., generally known as the Texas Guest Statute, provides: 'Section 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. Sec. 2. This Act shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier, or by such owner or operator. Acts 1931, 42nd Leg., p. 379, ch. 225.' Here the law questions pased by the parties may be considerably narrowed: Appellant asserting that his ambulance ride was an integral part of a commercial transaction and hence not governed by Section 1 of the Act. And, if not so, that he was an invitee of defendant, a public carrier, under sec. 2 above, his injuries resulting from its failure to exercise ordinary care on the...