Cornett v. Hardy

• Court: Texas Civil Court of Appeals
• Writing for the Court: COE
• Citation: Cornett v. Hardy, 241 S.W.2d 186 (Tex. Ct. App. 1951)
• Decision Date: 17 May 1951
• Docket Number: No. 4702,4702
• Parties: CORNETT v. HARDY.

Page 186

241 S.W.2d 186

CORNETT v. HARDY.

No. 4702.

Court of Civil Appeals of Texas, Beaumont.

May 17, 1951.

Rehearing Denied June 20, 1951.

Kemper, Wilson & Schmidt, Houston, for appellant.

Campbell & Foreman, of Livingston, Allen, Smith, Neal & Lehmann, of Houston, for appellee.

COE, Chief Justice.

This is a public liability case wherein a $20,000 judgment was entered on a jury verdict in favor of appellee, a filling station operator, against appellant, a business invitee at appellee's filling station and an employee of a truck owner for damages for personal injuries sustained by appellee while placing air in a truck tire allegedly mounted on a defective rim.

The case was tried to a jury and in answer to the special issues submitted by the court, the jury found, first, that the rim holding the tire on a dual wheel that blew off when appellee Hardy was undertaking to air the same had become in such a defective condition that it would blow off on its own accord; second, that appellant Cornett was aware of this fact at the time and before he drove into the filling station of appellee to have the tire aired; third, that appellant failed to warn appellee of the defective condition of said rim when asking him to air the tires; fourth, that such failure was negligence and, fifth, that such negligence was the proximate cause of appellee's injuries and assessed his damages at $20,000. Appellant has brought forward seven Points of Error under which it contends that the trial court erred, first, in failing to grant appellant's motion for instructed verdict; second, that the trial court erred in refusing to grant appellant's motion for judgment non obstante veredicto; third, that there is no evidence that authorized the submission to the jury of Special Issues Nos. 1, 2, 3 and 4 and there is no evidence of record to support the affirmative answer by the jury to said enumerated Special Issues; fourth, that it was error to submit Special Issue No. 1 over appellant's objection that there was insufficient evidence to warrant the submission thereof; number five, that the trial court erred in admitting over appellant's objection that portion of the deposition of the testimony of J. T. Cutler, who not having qualified as an expert witness was permitted to express a conclusion and an opinion about an ultimate fact to be determined by the jury or if qualified as an expert witness to testify about a matter that was not capable of being described in detail so as to give the jury an intelligible understanding and about which no expert opinion was necessary; sixth, that it was error to submit Special Issue No. 1 over the objection of appellant that said issue as phrased constituted a comment by the court upon the weight of the evidence, and assumed as a fact the very matter about which the inquiry should have been made, while the seventh point raises the question of the excessiveness of the judgment. Points 1 and 2 have been grouped by appellant and will be so treated by us.

The substance of appellee's testimony is that on June 22, 1938, he was the operator of a Humble Filling Station in Shepherd, Texas, and that on such date the appellant Roy Cornett drove a Chevrolet log truck and trailer into his filling station and that 'he asked me to check the tires and see how much air was in them;' that when he went to check the air in one of the tires on the rear dual wheels he observed that the valve stem was bent down so that he could not get the air gauge on the stem without putting his hand thereon 'to shove it back where I could angle the air gauge on there'; that 'when I bent the stem up the rim blew off'; that as a result his hand was injured; that he had operated a garage for approximately three years; had formerly operated a gasoline agency and had used trucks in the distribution of products; had engaged in farming; had served as a county commissioner at which time he had supervision of dual wheel dump trucks; that he had been a machinist in government jobs and had driven a dual wheel truck for some six months; that in his business of operating a filling station he had occasion to air tires on trucks and automobiles; that he had known appellant some 12 or 14 years and had known John Kinney, (the owner of the truck which appellant was driving) who came with appellant into the filling station on the day of the accident, ever since he had lived in Shepherd, Texas; that the rim of the wheel which blew off is a circular device that fits around one side of the tire and holds it on the wheel; that the rim is separate from the wheel and fits into a groove thereon and is about one inch or an inch and a half wide; that he had never heard of a rim 'popping off' of a tire and that as far as he could see there was nothing wrong with the tire or the rim on the truck; that you can't see the rim from the outside and one would have to get down and look close if one wanted to examine a rim and when they are put on dual wheels you couldn't tell whether there was anything wrong by looking at them; that he had never heard of any other filling station operator having any such experience of a rim flying loose. It was further shown that the appellant was engaged in operating this log truck for John Kinney; that he had at one time owned the truck he was driving but had sold it to Kinney sometime before appelle was injured but had continued to operate it after selling it to Kinney for a salary of.$7.00 per day; that he kept said truck in his continuous possession, keeping it at his home at night; that the rim on the dual wheel had jumped off while the truck was traveling down the highway; that this was the only time he had had a rim to come off and had never known of a rim blowing off, but had heard of such things occurring; that it was unusual for rims to be jumping off. The evidence is sufficient to show that the identical rim which had blown off the wheel while appellant was operating the truck on the highway was the rim that blew off and injured appellee; that appellant knew of the dangerous condition of the rim is shown from the following excerpt from his deposition as well as the testimony of the witness T. J. Cutler; specifically appellant testified as follows:

'Q. It coming off down the highway, you knew that was a dangerous situation? A. That is something I had never seen.

'Q. You knew it was dangerous for it to do it? A. Yes, sir.

'Q. And when you drove up here, you and Mr. Kinney, to Mr. Hardy's place this morning * * *. A. Yes, sir.

'Q. You still knew it was dangerous and just didn't think to tell him? A. Yes, sir.

'Q. You knew it was dangerous? A. Yes, sir.

'Q. But I mean sitting right there still, and having done that while you were on a paved road, driving on pavement and expecting a man to put air in that tire, you wasn't surprised that it blew off, was you? A. No, I knew it was warped or something.

'Q. And you knew it was dangerous, didn't you, Roy? A. Yes, sir.

'Q. If you had thought you would have told this man? A. I sure would have.'

Prior to the accident T. J. Cutler, who had worked on the truck wheels, informed the appellant that the rim was awfully rusty; that the tire was awfully dangerous; that the rim was worn out; that he, Cutler, knew it was a dangerous situation. It was also shown that appellant did not inform appellee of the defective condition of his wheel or rim. Appellant offered no testimony to contradict appellee's evidence. Appellant contends that the evidence wholly fails to show a duty owed by appellant to appellee and a failure on the part of appellant to exercise that degree of care required of him by law in performance of that duty. Appellant also contends that appellant was only a ministerial employee or servant of John Kinney and therefore was under no duty to the appellee to warn him of any defective condition of which he had knowledge that might cause injury, and cites as authority supporting this contention the case of Varas v. James Stewart & Co., Inc., 223 Mo.App. 385, 17 S.W.2d 651. That was a case in which the driver of the vehicle was directed by his master to deliver the truck to a repairman for repairs and because of a defect in the electrical wiring of the truck the repairman was injured. The substance of the holding of the court was to the effect that the driver of the truck was a mere ministerial servant commissioned as a driver of the truck to deliver it to the plaintiff and to deliver the instructions of his master to repair the brakes; he was not a foreman or manager and had no general powers or authority; that his failure to disclose to the plaintiff the defective...