Flores v. Garcia

• Decision Date: 11 December 1920
• Docket Number: (No. 6460.)
• Citation: Flores v. Garcia, 226 S.W. 743 (Tex. App. 1920)
• Parties: FLORES v. GARCIA.
• Court: Texas Court of Appeals

Page 743

226 S.W. 743

FLORES v. GARCIA.

(No. 6460.)

Court of Civil Appeals of Texas. San Antonio.

December 11, 1920.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by Dario Garcia against Alcala Flores. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

Hal W. Greer and A. C. Hamilton, both of Laredo, for appellant.

John A. Pope and Raymond & Pope, all of Laredo, for appellee.

COBBS, J.

This suit is for damages brought by appellee for personal injuries occasioned by a collision between an automobile driven by the agent, servant, and employê of appellant and a bicycle ridden by appellee, on the streets of Laredo, on or about September 1, 1918, resulting in bodily injuries to appellee, detailed in plaintiff's petition.

Appellee's cause of action was predicated upon the alleged negligence of the driver of an automobile owned by appellant while operating in the line of his employment. One of the grounds of negligence alleged was the violation of the penal laws of Texas regulating the operation of automobiles—the violation of article 820k, the provisions of which were set out in plaintiff's petition. Another ground of negligence was that appellant, without giving appellee any notice of his approach or of his intention to make a turn at the intersection of streets, in violation of law, negligently, recklessly, carelessly, and without regard to life or property ran into and over the appellee and his bicycle with great speed and force, and did then and there with his automobile knock appellee down and permanently injure him.

It was alleged that the driver of said machine was in the employ of appellant, who was the owner of the automobile, and members of his family were then being driven and were riding in said automobile, and under whose authority it was being driven, and under whose direction the chauffeur was operating the same, and therefore his negligence was the negligence of the owner.

The appellant filed answer consisting of both general and special exceptions, a general denial, and special pleas of contributory negligence. All of said pleas were overruled.

The case was submitted to the jury on a general charge of the court, and resulted in a verdict in favor of appellee for the sum of $2,500.

The findings of the jury were as follows:

Expenses incurred for medical services ..... $  400 00
                Physical and mental suffering ..............    200 00
                Diminished earning capacity ................  1,900 00
                                                            _________
                    Total ................................. $2,500 00
                

The appellee of his own motion asks that the judgment be reformed to allow him to remit the sum of $353, so that the judgment shall be for only the sum of $2,147.

The first assignment of appellant complains of the action of the court in overruling his demurrer, and his proposition thereunder is to the effect that the suit, having been brought for damages under penal clauses of the statutes relating to the use of vehicles on public highways, applying only to fines and penalties, and containing no provision authorizing suits for damages for injuries inflicted by persons operating machines, fails to state a cause of action against the true owner, who was not present at the time of the accident.

The appellant bases his contention upon the proposition that the statute regulating the operation of automobiles is a criminal statute and affords no remedy for civil action, and therefore the only remedy that the appellee has is to sue and recover damage for his injuries based upon the common-law remedy alone.

It has been held so many times in this state that it is negligence per se for railroads to operate trains in violation of statutory laws or ordinance of cities that it is not an open question. It is a tort and trespass for which a civil action will lie, whether applied to a corporation or individual. A case very similar to this was decided by this court very recently. See Zucht v. Brooks, 216 S. W. 685. The court did not err in overruling the exception, and this assignment is overruled.

The second assignment is somewhat similar to the first, and complains that it was error for the court to overrule special exception No. 4, directed at the same provision of the statute, as contained in 2 Vernon's Texas Civil and Criminal Stats., Pen. Code, Supp. of 1918, c. 1, tit. 13, arts. 820a to 820yy, particularly article 820k, subd. (k), and article 820kk, because it was calculated to inflame the mind of the jury into the belief that a collision was willfully and maliciously caused by defendant.

It was not improper to plead the statute itself in hæc verba. The allegation that the plaintiff operated his automobile in violation of the law in such cases made and provided, and in the particular in which it was claimed that it was a violation, would have been sufficient; but the statute itself pleaded was not, for the reasons stated, improper, since, if one operating a car in violation of a statutory law or police regulation of a municipality causes an accident by such violation, his act, being in violation of the law or ordinance, is negligence per se, and to claim that it was improperly influencing the minds of the jury, or that it gave no right of action, is not supported by any authority cited by appellant, and is in the face of the holding of many courts besides that of this court.

This assignment is overruled.

The third assignment complains that it was error of the court not to sustain appellant's motion to strike out all of the testimony as per the grounds set forth in his bill of exceptions. This assignment practically sets up all of the defenses, that is contending that the rule as to the negligence of an agent does not apply to an individual as against a corporation; and the regulations provided by law fail to confer a right of action against individual owners operating cars negligently through a chauffeur, and such a cause of action is not conferred by a statute, but comes under the common-law remedy, under which it is claimed no right of action for the negligence of the servant can be imputed to, nor a recovery had against, the owner of the machine, and the right of action, if any, is against the chauffeur operating the car, not the owner. This is an incorrect statement of the law, and the court did not err in overruling the motion.

This assignment is overruled.

The appellant was the owner of the machine and had in his employ as chauffeur Jose Leal, who was 19 years old, and at the time of the accident was driving the car for Maria Flores and Rosa Gonzales, who were in the car when the accident occurred. Maria Flores was the sister of appellant, and Rosa Gonzales was a friend of the family. They were riding in the car for pleasure and were talking, as they said, "like women generally do, and seeing; that is what we go out riding for, * * * having a good time, talking and riding." The testimony very fully established the fact that the chauffeur was in the course of his employment, driving defendant's car for the pleasure of defendant's family and guest, at the time of the collision. He was engaged in the business of his employment. The safety of pedestrians and those using the ordinary vehicles of travel must of necessity depend upon the careful operation of automobiles upon the thoroughfares. It is a powerful machine, capable of doing great damage if negligently manipulated, and the owner should be charged with the responsibility that those to whom he permits the use of such instrumentality shall be capable and his car under the control of a careful person. The public is vitally concerned in such employment and in the operation of...