Flanigan v. Carswell
| Decision Date | 11 June 1958 |
| Docket Number | No. 10570,10570 |
| Citation | 315 S.W.2d 295 |
| Parties | James Eugene FLANIGAN et al., Appellants, v. Jack CARSWELL et al., Appellees. |
| Court | Texas Court of Appeals |
Vinson, Elkins, Weems & Searls, Thomas B. Weatherly, Gaius G. Gannon, Jr., Houston, for appellants.
Max Garrett, Houston, for appellees.
Appellee, Jack Carswell, suffered injuries to his person and to his property when his ambulance (operated by him) collided with an automobile operated by appellant, James Eugene Flanigan.
Carswell sued Flanigan and appellant, J. C. Smith operating as Courteous Cab Service, and alleged that Flanigan was Smith's agent. He further alleged that on the afternoon of May 23, 1955, he was making an emergency call in his ambulance; that he was driving with his siren and red light equipment engaged and working; that as he approached the intersection of Richmond Avenue and Mandell Street in the City of Houston Flanigan was also approaching said intersection, and that the collision occurred as the result of acts of negligence of Flanigan which negligence proximately caused the collision and the resulting injuries.
Subsequently Flanigan filed a separate suit against Carswell for damages for personal injuries sustained by him in the collision and alleged such damages were sustained as a proximate result of Carswell's negligence.
The above causes were consolidated and subsequent to such consolidation Bobby Wilson, a minor, by his next friend W. L. Wilson intervened. He alleged that at the time of the collision he was a passenger in the ambulance; that he suffered personal injuries as a proximate result of Flanigan's negligence and sought a recovery against Flanigan and Smith for his damages.
Smith sued Carswell for damages sustained to his automobile which was operated by Flanigan.
A judgment, on a jury's verdict, was rendered awarding Carswell and Bobby Wilson damages against Flanigan and Smith jointly and severally. Smith and Flanigan were denied any recovery against Carswell.
Carswell and Bobby Wilson, upon the trial court's order, filed remittiturs. Thereafter judgment in favor of Carswell for $12,000 and in favor of Bobby Wilson for $2,000 was entered.
Flanigan and Smith have appealed and by their first point say that the trial court erred in overruling their plea to the jurisdiction of that court because prior to the trial the cause was dismissed for want of prosecution; that the cause had never been reinstated, and that the judgment of dismissal had become final.
This cause proceeded to trial September 9, 1957. On that day appellants filed their plea to the jurisdiction of the trial court which alleged substantially that some months prior thereto the cause was regularly called for trial; that the plaintiffs made no announcements; that the cause was dismissed for want of prosecution, and that it had never been reinstated. The plea was sworn to by an attorney who was present at the call of the docket when the cause was dismissed.
The transcript contains no judgment dismissing the cause and no judgment overruling the plea. However appellants rely on notations made on two docket sheets which are:
1. 'Jury Docket June 10, 1957
'* * *
'456242
Dismissed
'Jack Carswell et al
James Eugene Flanigan et al 55'
and
2. 'Sep. 9, 1957 Plea to jurisdiction overruled.'
Appellants do not contend that there is any record other than as is above stated to show that any judgment was entered of record.
In Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566, the court said:
The judgment alleged in support of point one was not entered of record and it is not effective. The point presents nothing for review. Ex parte Rains and Daniel v. Daniel, both supra. 25 Tex.Jur., p. 427, Sec. 60. Point one is overruled.
The majority holds that reversible error is not presented by the showing that Carswell did not have a chauffeur's license They also hold that the trial court erred in requiring appellees to file remittiturs and sustain their cross point praying that the judgment be reformed by restoring thereto the amounts of the remittiturs. I do not agree.
Carswell operated a funeral home in the City of Houston. He owned the ambulance in question for which he had been issued a permit by the Texas State Health Department under Art. 4590b, Vernon's Ann.Civ.St. The permit designated it as an emergency ambulance.
Carswell was driving the ambulance and was traveling at a rate of speed in excess of thirty miles per hour but not over forty. Carswell did not have a chauffeur's license but had only an operator's license. At the place where the collision occurred the speed limit for ordinary traffic was thirty miles per hour and for emergency vehicles it was forty miles per hour. As to his earnings from the ambulance Carswell testified:
'Q. Are you telling the jury you made $60.00 a day over a period of a year from the use of that ambulance? A. Yes sir, average income.
By issue three the trial court asked the jury if 'the vehicle operated by plaintiff, Jack Carswell, was on an authorized emergency run at the time of the collision in question?' The jury found that it was.
By issue six the jury was asked if Flanigan 'failed to yield the right of way to the vehicle being driven by' Carswell. The jury found he did. By issue nine the jury was asked:
'Do you find from a preponderance of the evidence that Jack Carswell was driving the ambulance in question at a rate of speed in excess of forty miles per hour?'
The jury found he was not.
Appellants objected to the charge for the reasons that Carswell had not complied with the law in regard to driving an ambulance at a rate of speed in excess of thirty miles per hour and that he did not have a chauffeur's license as required by law to authorize him to drive the ambulance in excess of thirty miles per hour. They also requested the submission of an issue inquiring if Carswell was operating his ambulance at a speed in excess of thirty miles per hour and requested accompanying issues of proximate cause. These issues were refused. Appellants also filed their motions for an instructed verdict, for judgment non obstante veredicto and for mistrial.
It must be determined whether Carswell was lawfully authorized to drive his ambulance at a rate of speed in excess of thirty miles per hour when he did not have a chauffeur's license? Or, stated differently, do the facts that the ambulance was an emergency ambulance and was on an emergency run authorize it to be driven at a rate of speed of forty miles per hour regardless of the license held by its operator?
There is no dispute that the vehicle driven by Carswell was an emergency ambulance and that it was driven at a rate of speed in excess of thirty miles per hour.
Here Carswell sues for his own personal injuries and defends the suit against him on the ground that the law authorized him to drive forty miles per hour and further required Flanigan to yield the right of way to him.
An ambulance is a motor vehicle. Sec. 1(b) of Art. 6687b, Vernon's Ann.Civ.St. Sec. 1(o) of that article defines a chauffeur as:
'every person who is the driver for wages, compensation, or hire, or for fare, of a motor vehicle transporting passengers.'
Sec. 2(a) provides:
'(a) No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of this Act.'
Sec. 3 names persons who are exempt from license requirements, and in part provides that:
'It shall not be necessary for an employee of any incorporated city, town or village of this State or county of this State when holding an operator's permit to obtain a chauffeur's license in order to operate an official motor vehicle in the service of such incorporated city, town, village or county.'
Ambulance drivers are not exempted by said section. Carswell was not an employee of the city and the ambulance was not operated in the service of the city.
Art. 813, Vernon's Ann.P.C. defines a chauffeur and makes it a misdemeanor for any person to operate a motor vehicle as a chauffeur when such person is not licensed to do so. Also Sec. 44 of Art. 6687b supra makes it a misdemeanor for any person to violate any of the provisions of the Act.
Carswell's testimony supra shows he was operating his ambulance for compensation. Also we think it must be said that he was transporting passengers. Hazen v. Chambers, 71 App.D.C. 220, 108 F.2d 741. The question there presented was whether ambulances in which persons were carried for a fee were subject to a statute providing:
'Owners of passenger vehicles for hire, whether operated from a private establishment or from public space, other than those licensed in the two preceding paragraphs, shall pay a license tax of $25 per annum for each such vehicle used in the conduct of their business.' D.C.Code Supp. IV, T. 20, Sec. 1731(d).
The court said:
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Flanigan v. Carswell
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