Dorman v. Cook
| Decision Date | 12 November 1953 |
| Docket Number | No. 4940,4940 |
| Parties | DORMAN v. COOK. |
| Court | Texas Court of Appeals |
Houston Thompson, Silsbee, for appellant.
Richard N. Evans, Beaumont, for appellee.
The appellee Cook sued the appellant Dorman in the County Court of Orange County for damages to appellee's automobile arising out of a collision with a calf of the appellant on Highway 87 in Orange County. The case was tried to the court without a jury and the court rendered judgment for the appellee against the appellant in the sum of $350. The appellant has perfected his appeal by filing a transcript only. No statement of facts was filed.
The appellant filed what he denominated a supplemental transcript, but on motion of the appellee this instrument was stricken for the reason that the contents thereof had never been filed in the papers of this case and were not introduced in evidence. The appellant also included in the transcript what appeared to be 'findings of fact and conclusions of law' but this instrument was stricken on motion of the appellee, since they were not the real findings of fact and conclusions of law. The instrument was never signed by the trial judge but the trial judge signed and filed another instrument which is properly in the transcript as findings of fact and conclusions of law.
Omitting the formal parts thereof, plaintiff's original petition was as follows:
'On March 25, 1952 the plaintiff was driving his automobile south on Highway 87 about one-half mile south of the junction of Highway 90 and Highway 87; the plaintiff was driving his automobile in a safe manner as an ordinarily prudent man would do in the same or similar circumstances; suddenly without any warning three calves ran across the highway directly in front of the car; the automobile struck one of the three calves, doing considerable damage to the plaintiff's automobile.
'At the point of the accident there was a stock law in force at the time of the accident, and this stock law prohibits allowing cattle to roam at large on public highways as well as private property.
'The calf hit by the plaintiff's automobile belonged to the defendant.
'On the occasion of the accident the defendant was guilty of negligence per se in allowing the calf which was hit by the plaintiff to roam at large in violation of the stock law; this act of negligence was the proximate cause of the collision and resulting damage to the plaintiff's automobile.
'Plaintiff would show the reasonable cash market value of his automobile in Orange County, Texas, immediately prior to said collision was Eighteen Hundred ($1800.00) Dollars; and the reasonable cash market value thereof immediately after said collision in Orange County, Texas, and before any reparis were made was the sum of Fourteen Hundred Fifty ($1450.00) Dollars that as a proximate result of the negligence of the said defendant the cash market value of plaintiff's said automobile in Orange County, Texas, was reduced in the total amount of Three Hundred Fifty ($350.00) Dollars, all to the plaintiff's damage in said sum.'
The pleading of the defendant below was a general denial and nothing else. No exceptions were filed to the petition of the plaintiff below.
The trial court's findings of fact and conclusions of law are as follows:
'Findings of Fact
'1. George F. Cook, plaintiff, and Durwood Dorman, defendant, are both residents of Orange County, Texas.
'2. On March 26, 1952 George F. Cook was driving his automobile south on Highway 87 in Orange County, Texas about one half a mile south of the junction of Highway 90 and Highway 87, Orane County, Texas, which junction is known as the Circle which is at the end of MacArthur Drive.
'3. George F. Cook was driving his automobile in a safe manner as an ordinarily prudent man would do in the same or similar circumstances.
'4. Suddenly without any warning, a calf owned by the defendant, Durwood Dorman, ran across the highway directly in front of the automobile and the plaintiff's, George F. Cook's, automobile struck this calf.
'5. Durwood Dorman's calf being loose on the right-of-way of Highway 87, Orange County, Texas, and darting in front of George F. Cook's automobile was the proximate cause of the accident.
'6. Durwood Dorman's calf was loose, unattended and roaming at large.
'7. The accident did damage to George F. Cook's automobile and the accident happened on the right-of-way of Highway 87 between the circle, being the junctions of Highway 87 and Highway 90, and the O. & N. W. Railroad track right-of-way in Orange County, Texas.
'Conclusions of Law.
'1. On March 26, 1952 there existed a valid law in full force and effect prohibiting the owners of cattle from allowing their cattle from roaming at large and loose at the place where George F. Cook's automobile struck the calf owned by Durwood Dorman.
Since no statement of facts is before us the appeal must be determined upon the pleadings of the parties, the judgment of the court and the findings of fact and conclusions of law as found by the court in support of its judgment.
The appellant's two Points of Error are as follows: (1) The judgment of the trial court is in error in that it is based upon the premise that the appellant was guilty of negligence per se; (2) the judgment of the trial court is in error in that it is based upon the premise that the appellee has violated a statute.
Under his first point the appellant makes the clever argument that the suit was brought for a violation of Articles 1369 and 1370 of the Penal Code, Vernon's Ann.P.C., which articles apply to any county or subdivision of any county in which the stock law has been adopted; that the pleadings of the appellee must be construed to charge the appellant with violation of one or both of such articles and not a violation of Article 1370a; that the trial court's findings do not show a violation of either of such articles. He says in his brief that there is nothing in the...
To continue reading
Request your trial
-
Eagle Trucking Co. v. Texas Bitulithic Co.
...holding approved); Fender v. Farr, 262 S.W.2d 539, 543 (Tex.Civ.App. Texarkana 1953, no writ); Dorman v. Cook, 262 S.W.2d 744, 747 (Tex.Civ.App. Beaumont 1953, writ dism'd). In Belzung v. Owl Taxi, 70 S.W.2d 288, 290 (Tex.Civ.App. Eastland 1934, writ dism'd), it was held that the plaintiff ......
-
Gomez v. Gomez, 1366
...judgment. Phillips v. American General Ins. Co., 376 S.W.2d 808, 810 (Tex.Civ.App. Amarillo 1964, no writ); Dorman v. Cook, 262 S.W.2d 744 (Tex.Civ.App. Beaumont 1953, writ dism'd); See Mial v. Mial, 543 S.W.2d 736, 737 (Tex.Civ.App. El Paso 1976, no writ); Ives v. Watson, 521 S.W.2d 930 (T......
-
Harshberger v. Reliable-Aire, Inc.
...Phillips v. American General Insurance Co., 376 S.W.2d 808, 810 (Tex.Civ.App. Amarillo 1964, no writ); Dorman v. Cook, 262 S.W.2d 744, 748 (Tex.Civ.App. Beaumont 1953, writ dism'd). The findings of fact filed by the trial court show the following applicable facts: 1) Plaintiff Reliable-Aire......
-
Davis v. Massey, 3632
...of ownership raises prima facie presumption of negligence and 'shifts the burden of offering evidence to the owner.' In Dorman v. Cook, Tex.Civ.App., 262 S.W.2d 744, 747, writ dis., in applying the quoted rule the court clearly delineated its limitation which governs the instant case: 'We m......