Empire Gas & Fuel Co. v. Muegge

• Decision Date: 06 January 1938
• Docket Number: No. 10511.,10511.
• Citation: 116 S.W.2d 758
• Parties: EMPIRE GAS & FUEL CO. v. MUEGGE et al.
• Court: Texas Court of Appeals

Page 758

116 S.W.2d 758

EMPIRE GAS & FUEL CO. v. MUEGGE et al.

No. 10511.

Court of Civil Appeals of Texas. Galveston.

January 6, 1938.

Rehearing Denied May 12, 1938.

Appeal from District Court, Washington County; John H. Tate, Judge.

Action by Ed Muegge and Martin Pardowski, a minor, by his next friend, Annie Pardowski, against the Empire Gas & Fuel Company for injuries sustained as a consequence of an automobile collision. From an adverse judgment, the defendant appeals.

Affirmed.

Albert Stone, of Brenham, and Baker, Botts, Andrews & Wharton and W. M. Ryan, all of Houston, for appellant.

W. J. Embrey and Richard Spinn, both of Brenham, for appellees.

GRAVES, Justice.

This much of appellant's general statement of the cause is acquiesced in by the appellees as being correct:

"Ed Muegge and Martin Pardowski, a minor, by his next friend, Annie Pardowski, sued Empire Gas & Fuel Company in the 21st District Court of Washington County, Texas, to recover damages in the total sum of $2,904.00, alleged to have been sustained by them as a consequence of injuries to person and to property resulting from an automobile wreck which occurred near an underpass four miles east of Brenham, Texas, on August 14, 1935. Plaintiffs alleged that an automobile-truck loaded with a ditch-digging machine, which extended to a height of 14 feet 4 inches and a width of 10 feet 7 inches, had, shortly before the occurrence of the accident, become wedged in the underpass, by reason of being too high to clear same, thereby blocking the road and making it necessary for plaintiffs, in an attempt to avoid colliding therewith, to turn to the right and into the ditch, wrecking and overturning plaintiffs' loaded milk-truck. Plaintiffs alleged that defendant Empire Gas & Fuel Company was the owner and operator of the truck blocking the underpass and the machinery loaded thereon, or if plaintiffs were mistaken in such allegation, that defendant was then engaged in operating and moving such vehicle over the highway, by and through its agent, servant, employee, and representative, Warren Angel. That the operation was being conducted under and by virtue of a special overload-permit, issued by the Highway Commission of Texas, authorizing Empire Gas & Fuel Company to transport a load not over 12 feet high or 8 feet wide over the highways from Denison to Yoakum. That the damages to plaintiffs resulted proximately from the negligence of defendant Empire Gas & Fuel Company, its servants, employees, and representatives, in (1) operating a load of greater height and width than authorized by the permit; (2) blocking the underpass; (3) attempting to drive through the underpass when it was known, or should have been known, that passage was impossible; (4) blocking the underpass in the knowledge that accident or collision might result therefrom; (5) failing to withdraw from the underpass; and (6) failing to give warning of the fact that the underpass was blocked.

"Defendant's answer consisted of a general demurrer, a general denial, a special sworn denial that it owned the truck or the ditching-machine, that it had licensed said truck in its name in Texas, or ever had authorized anyone else to do so, that it was in any way interested in the transportation of the ditching-machine, that it had procured or authorized anyone to, procure in its name a permit for the transportation thereof, or that Warran Angel, the driver, was its agent, servant, or employee in making the trip, or that the trip was made in any way for its use or benefit; and a special plea that plaintiffs were guilty of contributory negligence.

The case was called for trial on April 1, 1936, and after the court overruled defendant's sworn first application for a continuance based on its (alleged) inability * * to locate Warren Angel, the driver, in time to procure his testimony by deposition or otherwise, went to trial before a jury. On April 3rd the jury found in response to special issues submitted to it: (1) That defendant owned or operated the truck on the occasion in question; (2) that defendant, its employees, servants or agents, blocked the underpass; (3) which was negligence; (4) proximately causing plaintiffs' damage; (5) that Owen Hartness did not own the truck in question; (6) that plaintiffs' truck was not being driven at an excessive rate of speed; (7) and that the damages, which were itemized, amounted to a total of $1358.20. Judgment was entered in accordance with the verdict on April 6, 1936."

The quoted statement so reflecting the issues below presages also those joined upon the appeal; the first of these—that the overruling of appellant's application for continuance constituted reversible error— is held not to be well taken, without extended discussion; this, mainly for the reason that it assumes against what this court finds to be the record showing on that feature, that appellant exercised all due diligence in its efforts to locate Warren Angel, the driver of the truck that so blocked the underpass; it is true the application was a first one, and it may be further conceded that it was in proper legal form, but it does not follow that, ipso facto, it had to be granted irrespective of whether or not an actual showing of such due diligence was made. Sovereign Camp v. Davis, Tex.Civ.App., 268 S.W. 523; Maupin v. King, Tex.Civ.App., 25 S.W.2d 153; Peveto v. Richardson, Tex. Civ.App., 38 S.W.2d 133; Lipscomb v. James Leffel & Co., Tex.Civ.App., 44 S. W.2d 1008.

It appears that the sought-for witness, Warren Angel, was a non-resident of Texas; that this suit had been filed on August 23 of 1935; that interrogatories to him had not been filed until February 12 of 1936, nor a commission to take his deposition pursuant thereto issued until February 24 of 1936, which had been sent to his address at Bartlesville, Okl.; that on his not being found at that place no sufficient efforts to locate and reissue the commission for him were thereafter made for a period of some 35 days from then until this trial on April 1, of 1936, although appellant was shown all the while after such filing of the suit seven months prior to have been in position to know the materiality of this man's testimony, his occupation as a truck driver working from place to place over the country, his being a nonresident of Texas, and of the probable necessity of procuring his testimony only through deposition.

In such circumstances, as the cited cases make manifest, it was not an abuse of the discretion vested in the trial judge to deny the application.

Through a number of propositions it is next urged that the evidence upon which the jury found the complained-of truck to have been owned or operated by the appellant, that its employee or agent had negligently blocked the underpass with it, and that Owen Hartness did not own it at the time, at most only created a presumption or inference as to such ownership and responsibility for the truck and its movements at the time, which was dispelled and completely removed by positive evidence it adduced to the contrary; as a corollary, in that connection, it further presents that appellee Muegge's direct testimony, to the effect that just after the accident at the underpass the driver of the offending truck, Warren Angel, after he had first pulled the appellees from under their own wrecked truck in the near-by ditch, had, on Muegge's request therefor, written and given him a memorandum of his name and address and the license number of the truck he had been so driving, reading: "Empire Gas & Fuel Company —Texas—162-341—Bartlesville, Oklahoma —Warren Angel," was—standing alone— neither admissible for the purpose nor sufficient to raise the issue for the jury over whether Angel was then and there its agent or employee with any authority to fasten responsibility upon it for what he did.

None of these related presentments, it is thought, should be sustained; they each and all seem to this court to appraise as a mere presumption or inference —such as arises from inconsequential circumstances like having a name painted on the side of a truck or vehicle—what in this instance was direct, positive, and well-nigh conclusive evidence of ownership of the offending truck in question by this appellant, under due registration and permits to operate the same emanating from the State of Texas, at the time and place of this accident; further that, far from...