Flanigan v. Carswell

• Decision Date: 03 June 1959
• Docket Number: No. A-6968,A-6968
• Citation: 159 Tex. 598,324 S.W.2d 835
• Parties: James Eugene FLANIGAN et al., Petitioners, v. Jack CARSWELL et al., Respondents.
• Court: Texas Supreme Court

Page 835

324 S.W.2d 835

159 Tex. 598

James Eugene FLANIGAN et al., Petitioners, v. Jack CARSWELL et al., Respondents.

No. A-6968.

Supreme Court of Texas.

June 3, 1959.

Rehearing Denied June 24, 1959.

Vinson, Elkins, Weems & Searls, Thomas B. Weatherly and Gaius G. Gannon, Jr., Houston, for petitioners.

Max Garrett, Houston, for respondents.

SMITH, Justice.

This is a suit for damages for personal injuries and property damage resulting from an automobile-ambulance collision at the intersection of Richmond and Mandell Streets in the City of Houston, Texas. Two separate suits were originally filed, one by Jack Carswell against James Eugene Flanigan and J. C. Smith, and the other by Flanigan against Jack Carswell. These suits were, by order of the trial court, consolidated. The order consolidating the two suits expressly provided that the suit filed by Flanigan would thereafter be considered as a cross-action to the original suit filed by Carswell. Each party alleged damages sustained as a proximate result of the negligence of the other. Smith, the owner of the automobile, filed a cross-action against Carswell for damage to his automobile. No issue was submitted to the jury as to Smith's property damage, and that question is not before us.

After the suits were consolidated, Bobby Wilson, a minor, acting through next friend, intervened. He sought damages from Flanigan and Smith for personal injuries which he alleged were sustained while he was a passenger as an attendant in the ambulance driven by Carswell and which were caused by Flanigan's negligence.

Submission of special issues to the jury resulted in findings of negligence against Flanigan, the agent of Smith, and findings that such negligence was a proximate cause of the injuries sustained by Carswell and Wilson, and that the plaintiffs were damaged in amounts of $30,000 and $5,000, respectively. An order of the trial court directed Carswell to remit $18,000 and Wilson $3,000. After these remittiturs were filed, judgment was entered for Carswell in the sum of $12,000 and Wilson $2,000 against the defendants, Flanigan and Smith.

On appeal to the Court of Civil Appeals, that court reformed and affirmed the judgment of the trial court. 315 S.W.2d 295. The Court of Civil Appeals held that the remittitur required of Carswell and Wilson by the judgment of the trial court was improper, and entered its judgment for the sums of $30,000 in favor of Carswell, and $5,000 in favor of Wilson, as found by the jury.

Flanigan and Smith are the only petitioners here. The application for writ of error contains twelve points of error. These points of error present two main questions. The first six points present the basic question that the Court of Civil Appeals erred in affirming the trial court's action in overruling their motions for instructed verdict and for judgment non obstante veredicto. These six points of error also present questions such as that the trial court erred in refusing to submit certain requested special issues. The next four points of error present the question that the Court of Civil Appeals erred in holding that a trial judge has no discretion to require a remittitur of a successful plaintiff when the evidence, viewed most favorably to the plaintiff, supports the original award of the jury. The last two points are not briefed.

Taking up the questions in the order of presentation in the application for writ of error, we set out only those facts material to our decision, and confine our discussion to such facts and the special issues submitted to the jury thereon, and the answers thereto.

Carswell was the owner and operator of an ambulance which had been issued a permit as an emergency ambulance by the Texas State Board of Health, pursuant to the authority conferred by article 4590b, Vernon's Annotated Civil Statutes. The jury found that at the time of the collision Carswell was on an authorized emergency run, and that the vehicle was traveling at a rate of speed in excess of 30 miles per hour, but less than 40 miles per hour. It is undisputed that Carswell had only an ordinary Texas operator's license while driving the ambulance. In addition, the parties agree that ordinances, previously adopted by the City of Houston, provided that the speed limit in the area of the collision was 30 miles per hour for ordinary vehicles and 40 miles per hour for emergency vehicles.

Flanigan and Smith contend that they were entitled to an instructed verdict for the reason that the action of Carswell and Wilson, in driving and riding in the ambulance at a speed found by the jury to have been in excess of 30 miles per hour, was unauthorized by law, negligence and a proximate cause of the injuries sustained. They argue that he had only an ordinary operator's license, and that even though the ambulance was an emergency vehicle, its operator, Carswell, and the attendant, Wilson, riding in same with full knowledge of the circumstances, could not operate the ambulance at a rate of speed in excess of that applicable to ordinary vehicles when he had admittedly not complied with the law of the State requiring him to obtain a chauffeur's license. From this they conclude that the lack of a chauffeur's license, as a matter of law, gave the ambulance the status of that of an ordinary vehicle rather than that of an emergency vehicle, and, therefore, the lawful maximum speed limit was 30 miles per hour. With this we cannot agree. This contention of Flanigan and Smith, if adopted, would lead to a holding either (1) that an ambulance meeting the statutory definition of an 'emergency vehicle' in all respects, but which at the time of the collision was being driven by Carswell, who was not licensed as a chauffeur, was not an 'emergency vehicle' within the purview of the statute permitting an 'emergency vehicle' to exceed ordinary speed limits, or (2) that, even though the ambulance was an emergency vehicle and could lawfully travel at a speed of 40 miles per hour, the nonchauffeur-licensed driver of that ambulance could not accelerate its speed faster than 30 miles per hour. The contention thus made may be reduced to the narrow proposition that the status of an emergency vehicle operated on an emergency run is dependent upon the driver's license, at least in so far as the vehicle is authorized to exceed the ordinary speed limits.

It is unimportant to our decision whether or not an ambulance driver is required by article 6687b, Vernon's Annotated Civil Statutes of Texas, to be licensed as a chauffeur. Therefore, for the purposes of this case, we assume that Carswell should have had such a license, and that his driving without a proper license was a violation of the penal provisions of article 6687b, supra. We nevertheless hold that the ambulance was an 'emergency ambulance' and that the failure of Carswell to have a chauffeur's license did not render his driving negligence per se.

We have already stated that Carswell had secured a Texas permit which authorized him to use emergency ambulances as a part of his business, and that when the collision occurred he was on an authorized emergency run. Article 791, Vernon's Annotated Penal Code, provides that article 827a(8) of the Penal Code, which prescribed speed limits in this State, 'shall not apply * * * (to) ambulances responding to emergency calls; provided that incorporated cities and towns may by ordinance regulate the speed of ambulances.' The City of Houston, pursuant to the authority conferred by article 791, supra, has adopted an ordinance that 'it shall be unlawful for any person to operate or drive * * * (an) ambulance responding to an emergency call * * * at a rate of speed in excess of forty miles per hour.'

Under article 827a(8), supra, and the Houston ordinance, the 'person' operating the vehicle is forbidden to exceed the prescribed limits. 'Person' is nowhere defined in the statutes regulating motor vehicles, either civil or criminal, as meaning a properly licensed driver or operator. Article 6687b (1), the driver's license statute, defines 'persons' as 'every natural person, firm, copartnership, association, or corporation.' Even though the measures regulating speed of vehicles speak of the operators, we do not believe that the legislature intended by its use of the word 'person' to make the lawfulness of the rate of speed at which a vehicle travels dependent upon the status of the license of its driver. The statutes regulating speed of motor vehicles are not directed at drivers with valid licenses; they are directed at drivers generally, and written with the intention of regulating the speed of the vehicle. Were this not true, a person without any license would be guilty of negligence per se merely by driving an automobile upon the streets, because any speed would exceed that permitted of such operators.

To sustain the position of Flanigan and Smith would deny Carswell and Wilson a recovery, regardless of the negligence of Flanigan, as found by the jury and unquestioned here. It was not the intention of the legislature that article 6687b, supra, permit such result. The fact alone that Carswell was driving the emergency ambulance without securing a valid driver's license would not absolve Flanigan of negligence as the operator of the other motor vehicle. See Miller v. Jones, Tex.Civ.App., 270 S.W.2d 303, wr. ref. n. r. e.; American Automobile Insurance Company v. Struwe, Tex.Civ.App., 1920, 218 S.W. 534, wr. ref., 29 A.L.R.2d 970. The holding in these cases was based upon the theory that there could be no causal connection between the failure to secure a license and the accident.

We hold in this case that the failure of Carswell to secure a chaffeur's license, as required by statute, was not as a matter of law a proximate cause of the collision between the two motor vehicles involved. No fact issue on the question is raised. Flanigan and Smith rely principally upon such cases as Mundy v. Pirie-Slaughter...