Freeman v. Texas Bread Co.

• Decision Date: 18 November 1937
• Docket Number: No. 10450.,10450.
• Citation: 111 S.W.2d 307
• Parties: FREEMAN v. TEXAS BREAD CO.
• Court: Texas Court of Appeals

111 S.W.2d 307

FREEMAN v. TEXAS BREAD CO.

No. 10450.

Court of Civil Appeals of Texas. Galveston.

November 18, 1937.

Appeal from County Court, Harris County; Frank Williford, Jr., Judge.

Action by Clyde E. Freeman, by his next friend, W. E. Freeman, against the Texas Bread Company, wherein defendant filed a demurrer. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

W. P. Hamblen, Jr., of Houston, for appellant.

GRAVES, Justice.

This statement — found to be correct — has been taken from the appellant's brief, no brief for the appellee having been filed in this court:

"This suit was filed on the 31st day of July, 1935, by Clyde Freeman, a minor, who sued by his next friend, his father, W. E. Freeman, against the Texas Bread Company, a corporation, to recover damages alleged to have been inflicted by the defendant, Texas Bread Company, in a collision between a truck owned and operated by the defendant, Texas Bread Company, its agent, servant, or employee, and an automobile owned and operated by the minor plaintiff, Clyde Freeman. The facts of the collision are very concisely stated in plaintiff's original petition, appearing in the transcript, from which we quote briefly as follows:

"Plaintiff was driving the said automobile on the Waller Hempstead highway between Waller and Hempstead, driving east from Waller at a legal rate of speed, viz., forty (40) miles or less per hour, when defendant, its agent, servant, and/or employee was driving its truck in a westerly direction approaching plaintiff at an excessive and dangerous rate of speed, negligently and carelessly and on the wrong side of the highway, that is to say, that defendant, its agent, servant and/or employee was driving in a westerly direction on the left-hand side of the highway, thereby colliding with plaintiff's automobile.

"Plaintiff alleges that defendant, its agent, servant, and/or employee in driving on said Waller-Hempstead highway was driving at a dangerous and excessive rate of speed and that the collision of the Chevrolet coupé owned by plaintiff and the truck belonging to the defendant, Texas Bread Company, herein was due to the negligence and carelessness of said defendant, its agent, servant, and/or employee, in the following particulars, to wit:

"(a) In then and there wantonly and negligently coming up the highway at a very high and dangerous rate of speed.

"(b) In then and there wantonly and negligently failing to keep on the proper side of the highway and keeping a proper look-out for any traffic moving along the road, and approaching said defendant, its agent, servant, and/or employee. That as a natural, direct, and proximate result of the negligence and carelessness of the defendant, its agent, servant, and/or employee, as heretofore alleged as hereinbefore more particularly set out, plaintiff's Chevrolet coupé was completely damaged, injured, torn, broken, and destroyed to the amount of approximately four hundred fifty and no/100 ($450.00) dollars.

"The petition concluded with a prayer for judgment of the damages as alleged.

"The defendant, Texas Bread Company, filed a plea in abatement, numerous special exceptions, a general demurrer, general denial, and a plea of contributory negligence. The plea in abatement and the special exceptions were never urged, and were thereby waived, and, a jury having been waived, the case proceeded to trial before the court on its merits on October 23, 1935.

"At the conclusion of plaintiff's testimony the defendant made a motion for judgment, which was sustained by the court, and on October 30, 1935, the court entered its judgment that plai...