Fuller v. Southwestern Greyhound Lines, Inc.

• Decision Date: 06 January 1960
• Docket Number: No. 10713,10713
• Parties: Gladys Brown FULLER, Appellant, v. SOUTHWESTERN GREYHOUND LINES, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 455

331 S.W.2d 455

Gladys Brown FULLER, Appellant, v. SOUTHWESTERN GREYHOUND LINES, INC., et al., Appellees.

No. 10713.

Court of Civil Appeals of Texas, Austin.

Jan. 6, 1960.

Rehearing Denied Jan. 27, 1960.

Arthur O'Conner, Belton, Cofer & Cofer, Douglass D. Hearne, Austin, for appellant.

Cureton & Lanham, Waco, for appellees.

GRAY, Justice.

This appeal is from a summary judgment.

Appellant, Gladys Brown Fuller, sued Southwestern Greyhound Lines, Inc. and Wilson Temple for damages for personal injuries sustained by her while a passenger and seated on Southwestern's bus. She alleged that while she was seated on the bus and it was stopped at the bus terminal in Temple, Texas, she was struck on the head by a heavy suitcase which was carelessly and violently swung against her by a 'porter.' She alleged that Wilson Temple operated the bus terminal; that Southwestern and Wilson Temple were engaged in a joint venture, and that the 'porter' supra was the employee of each. In the alternative she alleged that Southwestern and Wilson Temple were not engaged in a joint venture but that said 'porter' was at the time the servant of each of them; or that said 'porter' was the servant and employee of Southwestern, or that he was the servant and employee of Wilson Temple.

Southwestern answered by a general denial and specially denied: that it was engaged in a joint venture with Wilson Temple, and that the 'porter' in question was its servant and employee. It then alleged that appellant's injuries were directly and proximately caused by her own negligence, or, in the alternative, that they were the result of an unavoidable accident.

Southwestern filed its motion for a summary judgment and accompanied it with the affidavit of its claim agent. This affidavit recites that the affiant, at the time appellant alleges she sustained injuries, was familiar with the location of the bus terminal operated by Wilson Temple and that:

'At that time the buses operated by Southwestern Greyhound Lines, Inc., together with other carriers and bus companies, used said property as a terminal for boarding passengers and the handling of baggage, express and mail. Mr. Temple sold tickets for Southwestern Greyhound Lines, Inc., permitting it to board and discharge passengers, baggage, express and mail and permitted Southwestern Greyhound Lines, Inc. to maintain a sign on said premises. Southwestern Greyhound Lines, Inc. paid Temple a commission on the sale of tickets and transportation charges. Southwestern Greyhound Lines, Inc. did not pay nor obligate itself to pay any expense with reference to the operation of said terminal, did not have any employees connected with said terminal, said Temple or said operation; that it had no employees or servants located in or around said terminal or connected therewith, or with said operations; that it did not employ any porters or any other employees at said terminal; that any porter or employee who carried baggage, luggage or the suitcase mentioned in plaintiff's petition was not any employee or servant or agent of Southwestern Greyhound Lines, Inc.; that at none of the times mentioned in plaintiff's petition did Southwestern Greyhound Lines, Inc. have any agent, servant or employee working in or around the terminal in question except the driver of its bus; that the unnamed person mentioned in plaintiff's pleadings as being a porter was not the agent, servant or employee of Southwestern Greyhound Lines, Inc.; that Southwestern Greyhound Lines, Inc. was not engaged in any joint venture with said Temple and the only connection it had with said Temple was as set out above.'

Thereafter, on March 3, 1959, appellant filed her first amended original petition. She repeated her allegations supra and:

'In the alternative plaintiff says that the man who struck plaintiff in the head with a large suitcase was not an employee of either defendant and that said man was a stranger to defendants and was neither an employee nor a customer of defendants and was untrained and unskilled in handling baggage. The defendants and each of them, their agents, servants and employees, were negligent in that they permitted said unknown man to board the Greyhound bus, and in that they permitted said unknown man to carry onto said bus a suitcase of such size and weight as to be dangerous to plaintiff and other passengers on the bus. Plaintiff says that the suitcase with which she was hit was so large and so heavy that it could not safely be stored and carried in the passenger area of the bus, and defendants were negligent in that they failed to require that said suitcase be checked and carried in the baggage compartment of the bus. Defendants were negligent in that each of them, their agents, servants and employees, failed to provide a baggage handler, trained in handling and storing baggage in the passenger area on buses, for the purpose of loading onto the bus the suitcase with which plaintiff was hit; and defendants were negligent in that they failed to prohibit an untrained and unskilled stranger from violently swinging about a large heavy suitcase within the passenger area of the bus.'

Appellant did not file counter affidavits and only the pleadings and the affidavit supra were before the court. On March 6, 1959 Southwestern's motion was sustained. On March 26, 1959 appellant's motion to sever her cause as to Wilson Temple was granted and on the same day the trial court rendered judgment that appellant take nothing by her suit against Southwestern.

Wilson Temple is not a party to this appeal and the cause as to him will not be further noticed. Southwestern will later be referred to as appellee.

Giving full credit to the affidavit supra it states as a fact that appellee was not engaged in a joint venture with Wilson Temple. It also states as a fact that the bus terminal was used by appellee 'for loading passengers and the handling of baggage, express and mail.' It also denies that the 'porter' was an employee or servant of appellee. It does not controvert the alternative pleading supra nor the allegation that the suitcase was so large and so heavy that it could not 'safely be stored and carried in the passenger area of the bus' nor that it was of such size and weight as to be dangerous to appellant and other passengers on the bus. Further it does not controvert the allegations that the accident happened and the manner of its happening.

By the provisions of Rule 166-A, Texas Rules of Civil Procedure, the trial court was authorized to render judgment for appellee on its motion 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' However the burden of showing that no genuine issue of fact existed was on appellee. It was the province of the trial court to decide from what was then before him (the documents named in the rule supra, here the pleadings and the affidavit) only the question of whether any genuine issue of fact as to any material matter was presented and whether as a matter of law appellee was entitled to judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683.

In Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 310, the court said:

'The general rule with respect to joint adventures is stated in 33 C.J. p. 841, as follows: 'A joint adventure has been aptly defined as a 'special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation."

'The rule is also defined in 25 Texas Jurisprudence, pp. 159 and 160, in the following language: 'It is constituted by a special combination of persons in the nature of a partnership--more particularly, a limited or special partnership--engaged in the joint prosecution of a particular transaction for mutual benefit or profit."

Also see: Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, 228. Er. ref., n. r. e., Eastep v. Travelers Ins. Co., Tex.Civ.App., 235 S.W.2d 732, 734, er. ref., n. r. e.

Even if the affidavit supra was sufficient to eliminate any issue of fact as to the existence of a joint venture between appellee and Wilson Temple and was also sufficient to eliminate any issue of fact as to the 'porter' being a servant or employee of appellee we cannot rest our decision here. This is true for the reason that appellee owed to its passengers the duty of exercising a high degree of care to protect them from injuries by strangers or intruders on its buses or premises provided the danger was or by the exercise of due care could have been known to its employees and prevented by them, and if it failed in its duty in this respect it is liable for resulting injuries. This duty arises when the danger is foreseen in time to prevent it, or is of such nature that under attending circumstances it might reasonably have been anticipated. 13 C.J.S. Carriers Sec. 696, p. 1303; Gulf, C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659; Houston Electric Co. v. Bragg, Tex.Com.App., 276 S.W. 641; Bennevendo v. Houston Transit Co., Tex.Civ.App., 238 S.W.2d 271, er. ref., n. r. e.

The affidavit made no reference to the suitcase except only that the person carrying it on board the bus was not an employee or servant of appellee. It places appellee's bus driver at the terminal and in effect denies that he was the 'porter' who carried the suitcase on board the bus. There is left uncontroverted the size and weight of the suitcase, the allegation that it could not be safely stored in the passenger area of the bus, the manner in which it was handled and appellant's injuries.

It is reasonable to say that when appellee, by its bus driver, authorized or permitted the suitcase to be carried into the passenger area of the bus it anticipated that...