Dixie Motor Coach Corporation v. Swanson

• Decision Date: 30 May 1931
• Docket Number: No. 12462.,12462.
• Citation: 41 S.W.2d 436
• Parties: DIXIE MOTOR COACH CORPORATION v. SWANSON et al.
• Court: Texas Court of Appeals

Page 436

41 S.W.2d 436

DIXIE MOTOR COACH CORPORATION v. SWANSON et al.

No. 12462.

Court of Civil Appeals of Texas. Fort Worth.

May 30, 1931.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Action by Mrs. Bessie Swanson, for herself and as next friend of her minor children, and another, against the Dixie Motor Coach Corporation. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Leachman, Gardere & Bailey, of Dallas, and Raymond E. Buck, of Fort Worth, for appellant.

Callaway & Wade, of Fort Worth, for appellees.

CONNER, C. J.

Mrs. Bessie Swanson, for herself and as next friend for her children, Aubrey Lee, Albert, Jr., Billie, Harold, and J. W. Swanson, all minors, the wife and children respectively of A. L. Swanson, deceased, and H. S. Swanson, the father of the deceased, brought this suit in the district court of Tarrant county against the Dixie Motor Coach Corporation to recover damages alleged to have resulted from the death of A. L. Swanson, which occurred on April 22, 1929, in an automobile accident.

The accident occurred near the intersection of the Fort Worth-Denton state highway and the Birdville graveled road. The highway is a paved road, and runs in a general north and south direction; the Birdville road is graveled, and runs in a general east and west direction, the west end terminating in the highway.

A coach or bus belonging to appellant was traveling from Fort Worth to Denton, loaded with passengers. A gravel truck, which at the time was being driven by Mr. Swanson, loaded with gravel, was traveling in a westerly direction on the Birdville road; the purpose of Swanson being to enter the highway, turn to the left, and proceed south in the direction of Fort Worth. A short distance south of the junction of the two roads was a concrete bridge over a small ravine; just south of the Birdville road at the point where it entered the highway was a gas and oil filling station; a short distance north of the junction of the two roads on the left or opposite side of the paved highway was another filling station.

The plaintiffs alleged that the deceased entered the paved highway with the purpose of crossing its center line to the west side and turning south in continuation of his journey; that the bus on the highway, soon after crossing the concrete bridge, turned to the left and proceeded north on the left-hand side, when the two cars collided. The truck struck the bus a short distance behind the front wheel, with the result that the truck was turned over and Swanson killed.

The plaintiffs alleged that the bus was owned by the defendant Dixie Motor Coach Corporation, and at the time was being operated by its employee in the conduct of its business.

It was further alleged that the driver of the bus was negligent in a number of particulars, including a failure to keep a proper lookout; in operating the bus at an unlawful and dangerous rate of speed; and in turning to the left and assuming a position on the left-hand side of the highway.

The defendant pleaded a general denial and contributory negligence on the part of the driver of the truck in a number of particulars not thought to be necessary to mention.

Upon the conclusion of the evidence, the case was submitted to a jury upon 33 special issues. We think it sufficient to say that the issues of negligence on the part of the driver of the bus, as above detailed, were found in favor of the plaintiffs; and that the defensive issues of contributory negligence, etc., were found against the defendant, damages being assessed in the aggregate sum of $16,000, for which, apportioned as the jury had directed, the court entered its judgment in favor of the plaintiffs. From this judgment the defendant has appealed.

As noted in the beginning, the plaintiffs alleged that the bus involved in the accident was owned by the defendant, Dixie Motor Coach Corporation and was at the time being operated by its agent, servant, or employee, while acting within the scope of his employment. But these issues were neither submitted nor requested, nor is there a jury finding supporting these allegations; and the appellant corporation in its amended motion for new trial complained of the action of the trial court in rendering its judgment against the appellant because there was no finding by the jury that appellant owned the bus in question; and also because there was no finding by the jury that the bus in question was being driven at the time by one of its agents, servants, or employees acting within the scope of his employment. The motion for new trial was overruled, and error is assigned to the action of the court in rendering judgment in the absence of such findings.

While it is true, as appellant insists, that there was neither a request for nor a finding to the effect that the bus in question was owned by the appellant corporation, or that the driver was at the time in its employment and acting within the scope of his employment, yet we think it should be stated that the undisputed evidence shows that the bus was owned by, and was being used in the business of, appellant corporation, and that at the time of the accident it was being operated by one Joe Pittman in the course of his employment as a servant of appellant. Appellees accordingly insist that, under the operation of article 2190, Rev. Statutes of 1925, as construed in the case of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, we should imply a finding by the court in favor of plaintiffs upon the submitted issues. The statute referred to, in so far as necessary to state, reads: "When the court submits a case upon special issues, he shall submit all the issues made by the pleading. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding. * * * "

The case of Gause-Ware Funeral Home v. McGinley, 41 S.W.(2d) 433, recently decided by this court, opinion not yet published [in State reports], was one in which McGinley sued to recover damages alleged to have resulted from a collision with an ambulance operated by an agent of the Gause-Ware Funeral Home. The petition of plaintiff, however, failed to allege that the driver of the ambulance was at the particular time of the collision "engaged in the performance of his employer's business," and we held that the petition was subject to the demurrer urged against it. Among others, we cited the case of Hall v. Jackson, 3 Tex. 305, which holds that facts not alleged, though proven, will not support a judgment. We further held that it was certainly necessary to prove that the driver of the ambulance "was at the particular time of the collision engaged in the performance of his employer's business," citing the following cases: International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039; Van Cleave v. Walker (Tex. Civ. App.) 210 S. W. 767; Miller v. Pettigrew (Tex. Civ. App.) 10 S.W.(2d) 168; Rew v. Stoddard (Tex. Civ. App.) 225 S. W. 836; Cole v. Wright (Tex. Civ. App.) 18 S.W.(2d) 242; Langford v. El Paso Baking Co. (Tex. Civ. App.) 1 S.W.(2d) 476.

Plaintiffs' allegations in the case before us that the bus was owned by the appellant corporation and was at the time being driven and operated by one of its servants during the course of his employment were essential allegations; they lie at the very foundation of the plaintiffs' case, which, as we think, is well established by the authorities, and must be established in the way and by the agencies the law designates. Our Supreme Court in the case of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, construed article 2190 in connection with its related statutes, and concluded, quoting from the headnotes, that: "Where case is tried to jury on special issues, unrequested and unsubmitted issues may be deemed as found by court in favor of judgment, when there is evidence to sustain findings, only if omitted issues are correlative, in accord with, and supplemental or incidental to, and in support of, issues submitted, and not if omitted issues constitute complete, independent ground of recovery or defense, under Rev. St. 1925, art. 2190, in view of articles 2185, 2186; `special issues' submitted to jury are separate and distinct questions or issues of fact, germane and material to cause or causes of action on which plaintiff relies for recovery or defendant for defense."

In Texas Employers' Ins. Ass'n v. Wright, 4 S.W.(2d) 31, it was held by Section B of our Commission of Appeals, in a case under the Workmen's Compensation Law, that, where a case was submitted to a jury upon special issues, and where the issue of right to a lump sum payment was not submitted nor requested by either party, the issue, quoting from the headnote, "was waived by plaintiff, and trial court had no authority to render judgment for lump sum upon the hearing for judgment after jury had been discharged."

The same section of the Commission of Appeals in the case of Montrief & Montrief v. Fort Worth Gas Co., 4 S.W.(2d) 964, held that it was error for the trial court to render judgment on a cross-action where the basic issue was not submitted to, and finding made thereon by, the jury.

In Norwich Union Ins. Co. v. Chancellor, 5 S.W.(2d) 494, 495, by Section B of the Commission of Appeals, it was alleged that Chancellor, who was suing to recover under the Workmen's Compensation Law as an employee under one Wattinger, had the burden of proving that he, Chancellor, was an employee of Wattinger, and it was there said: "This vital...