Fernandez v. Lewis
Decision Date | 05 March 1936 |
Docket Number | No. 3313.,3313. |
Citation | 92 S.W.2d 305 |
Parties | FERNANDEZ et al. v. LEWIS. |
Court | Texas Court of Appeals |
Appeal from District Court, Cameron County; A. M. Kent, Judge.
Suit by D. A. Lewis against Anna Maria Fernandez and others. From a judgment for plaintiff, defendants appeal.
Reversed and rendered.
Templeton, Brooks, Napier & Brown, of San Antonio, and West & Hightower and Galbraith & Goodrich, all of Brownsville, for appellants.
Abney & Whitelaw, of Brownsville, for appellee.
This is a suit to recover damages brought by D. A. Lewis against Miss Anna Maria Fernandez, her mother, Mrs. S. E. Bayless, and stepfather, S. E. Bayless. Mrs. Bayless and husband married subsequent to June 2, 1934.
The plaintiff alleged that on the night of June 2, 1934, he was driving his automobile on the highway in a southeasterly direction going from San Benito to Brownsville when it collided with another automobile then and there driven and owned by Miss Fernandez, traveling in a northeasterly direction. Various acts of negligence on the part of Miss Fernandez causing the collision were alleged. At the time of the collision Mrs. Bayless was a widow; Miss Fernandez was a minor and a member of her mother's family. Mrs. Bayless aided and abetted Miss Fernandez in the use and operation of the car upon the occasion in question and authorized Miss Fernandez to use and operate same. The automobile was procured by Mrs. Bayless for the pleasure of her daughter then a minor and for use by other members of the family. It was further alleged Miss Fernandez was a careless, reckless, and negligent driver which was known to Mrs. Bayless and she was negligent in permitting her daughter to drive the automobile.
Plaintiff's wife was riding in his car when the accident occurred and sustained personal injuries.
Judgment was sought against the daughter and her mother for damages to plaintiff's car and the damages sustained as the result of Mrs. Lewis' injuries.
Upon special issues submitted it was found that "the driver of the automobile of the defendant, Anna Maria Fernandez, at the time and on the occasion in question" was guilty of various acts of negligence proximately causing the collision. The issues of unavoidable accident and contributory negligence were found in favor of plaintiff.
The damages to plaintiff's car and for Mrs. Lewis' injuries were assessed at $12,885, for which amount judgment was rendered against Miss Fernandez and her mother.
In the state of the plaintiff's pleadings and the undisputed evidence there are a number of errors which necessitate reversal, but those errors only will be discussed which call for reversal and rendition.
The undisputed evidence shows Miss Fernandez was not driving the car upon the occasion in question, but it was being driven by Raymond Mickle.
Miss Fernandez, called by plaintiff, testified:
Asked if she used her sister's car, the Cadillac car, or her mother's car to go to dances in, she said:
Recalled by plaintiff, she testified:
Raymond Mickle called by defendants testified:
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