Gann v. Keith

• Decision Date: 03 December 1952
• Docket Number: No. A-3711,A-3711
• Citation: 253 S.W.2d 413,151 Tex. 626
• Parties: GANN et al. v. KEITH et al.
• Court: Texas Supreme Court

Page 413

253 S.W.2d 413

151 Tex. 626

GANN et al. v. KEITH et al.

No. A-3711.

Supreme Court of Texas.

Dec. 3, 1952.

Rehearing Denied Dec. 31, 1952.

Murray & Murray, Floresville, Charles J. Lieck, San Antonio, for appellants.

Carl Wright Johnson and Nat L. Hardy, San Antonio, for appellees.

SHARP, Justice.

The Court of Civil Appeals at San Antonio certifices to this Court certain questions hereinafter set out, and the certificate is accompanied by the entire record in the case, together with the briefs of the parties. The opinion of the Court of Civil Appeals is reported in 249 S.W.2d 683, and contains a comprehensive statement of the facts and the reasons for its decision. In order to show the background of the questions certified, we quote from the opinion of the Court of Civil Appeals certain controlling facts, as follows:

'The former opinion of this Court in this cause is reported in 240 S.W.2d 822. The opinion of the Supreme Court upon petition for writ of mandamus, Gann v. Murray, is reported in 246 S.W.2d 616, 620.

'In the mandamus proceedings Gann and others, plaintiffs below and appellants here, sought to compel this Court to certify the following question to the Supreme Court:

"When on the trial of the pleas of privilege filed by the appellees, Raymond Earl Mabra and Ben E. Keith, appellants proved commission of two crimes in Wilson County, Texas, by the appellee, Raymond Earl Mabra, while acting in the course of his employment for said appellee, Ben E. Keith both of which crimes were negligence as a matter of law, was it necessary for appellants to prove that at least one of such crimes was the proximate cause of their injuries in order to establish venue in Wilson County, Texas, under Exception 9 of Article 1995, Vernon's Annotated Civil Statutes of Texas?'

'In its opinion the Supreme Court suggested that a negative answer was proper and held that, 'Plaintiffs were required to prove 'that the crime * * * was in fact committed and that it was committed in the county where the suit is pending.' Compton v. Elliott, (126 Tex. 232, 88 S.W.2d 91) supra. The pleadings will determine as a matter of law for purposes of venue whether or not their suit is based upon that crime.'

'The Supreme Court's direction to this Court was as follows:

"Under Rule 475, T.R.C.P., the Honorable Court of Civil Appeals for the Fourth Supreme Judicial District of Texas is directed to conform its ruling and decision to this opinion. Costs are taxed against respondents.'

'The Supreme Court disapproved of the rule heretofore followed by this Court and set forth in Thomas v. Meyer, Tex.Civ.App., 168 S.W.2d 681, and held that although exception 9 of Article 1995, Vernon's Ann.Civ.Stats., required a causal connection between the injury suffered and the crime committed for an action to constitute a 'suit based upon a crime,' it was not necessary to prove this causal connection by a preponderance of the evidence as this was not a 'venue fact' requiring proof. It was said that 'this (causal connection) is determined on a venue hearing as a matter of law from the pleadings.'

'The Supreme Court, as pointed out in its opinion, did not have before it either the record or the briefs filed in this Court, and expressly limited its decision to the question of causal connection and refrained from passing 'upon the question of whether an offense was alleged and proved in the case at bar.' In our former opinion, we assumed, without deciding, that a violation of the penal code had been shown. However, in view of the action of the Supreme Court in overruling Thomas v. Meyer, Tex.Civ.App., 168 S.W.2d 681, it now becomes our duty to decide whether or not the evidence shows that a crime was in fact committed. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.'

The Court of Civil Appeals in its opinion sets out certain findings of fact made by the trial judge, which will not be repeated here. We quote further from the opinion as follows:

'Appellants' points of error are as follows:

"Point 1. The trial Court erred in sustaining appellees' pleas of privilege, because the evidence proved that the truck tractor was left standing on the highway, by the appellee Mabra, without its head lamps lighted thereon, such omission being in violation of Section 121 of Article 6701d of the Revised Civil Statutes of Texas, a 'crime' within the meaning of Exception 9 of Article 1995 of said statutes, and negligence as a matter of law.

"Point 2. The trial Court erred in sustaining appellees' pleas of privilege, because the evidence proved that the appellee Mabra placed a flare to the rear of the rear end of the trailer at a distance of not more than 82 feet, such act being in violation of Section 9-a of Article 827a of the Penal Code of Texas, a 'crime' within the meaning of Exception 9 of Article 1995 of the Revised Civil Statutes of Texas, and negligence as a matter of law.'

'Appellees' counterpoints are as follows:

"First Counterpoint. The court properly sustained plea of privilege to order the suits transferred because appellants wholly failed to prove that any crime was committed upon which appellants could base an action for civil liability against the appellees.

"Second Counterpoint. The court properly sustained the plea of privilege and ordering the suits transferred because appellants wholly failed to prove that the alleged crimes, if committed, were the proximate cause of the accident for which damages are sought or had any causal connection therewith.'

'It was the second counterpoint which the Supreme Court held was improperly sustained. The issues remaining in the case relate to asserted violations of Article 6701d, § 121, Vernon's Ann.Civ.Stats., and Article 827a, § 9-a, of Vernon's Ann.Pen.Code.

'Article 6701d, § 121, provides that:

"Whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto, whether attended or unattended during the times mentioned in Section 109, such vehicle shall be equipped with one or more lamps which shall exhibit a white light on the roadway side visible from a distance of five hundred (500) feet to the front of such vehicle and a red light visible from a distance of five hundred (500) feet to the rear, except that local authorities may provide by ordinance or resolution that no lights be displayed upon any such vehicle when stopped or parked in accordance with local parking regulations upon a highway where there is sufficient light to reveal any person within a distance of five hundred (500) feet upon such highway. Any lighted head lamps upon a parked vehicle shall be depressed or dimmed.'

'The allegations of the controverting affidavits relied upon as raising the point are as follows:

"(c) Plaintiff alleges that said defendant permitted said vehicle to be on the highway at nighttime without having all of the lights lit thereon, which was in violation of the Penal Laws of Texas, and a proximate cause of the plaintiffs' damages and injuries."

The evidence relied upon to show a violation of Article 6701d, § 121, is also set out in the opinion, which will not be repeated here. The Court of Civil Appeals in its opinion further said:

'Article 6701d, § 121, does not require that a vehicle left or parked on the highway have 'all of the lights lit thereon,' or that headlights be left burning. It requires an exhibition of 'a white light on the roadway side visible from a distance of five hundred (500) feet to the front of such vehicle.' There is no showing that such light was not exhibited. The indications of the evidence are to the contrary. We overrule appellants' first point.

'The burden of appellants' second point is complicated and ingenious.

Article 6701d, § 138, provides that when a motor vehicle becomes disabled upon the highway lighted flares shall be placed on the roadway 'at a distance of approximately one hundred (100) feet in advance of the vehicle, (and) one at a distance of approximately one hundred (100) feet to the rear of the vehicle.'

'Appellants' second point does not present the contention that the placing of a flare 82 feet to the rear of the vehicle (as found by the trial court) did not constitute a compliance with Article 6701d, but refers to Article 827a, § 9-a of the Penal Code. This section provides that a warning signal shall be placed upon the highway not less than 150 feet and not more than 200 feet from the parked vehicle in every direction from which another vehicle may approach. It is argued that Article 6701d, § 138, is unconstitutional and void for want of certainty; that it therefore could not operate to repeal Article 827a, § 9-a, of the Penal Code which is consequently now in full force and effect. The constitutional provision involved is Article 1, § 10, Vernon's Ann.St., Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494, which provides that, 'In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. * * *' We have no one before us charged with crime in a criminal prosecution, but in order to determine what should be a relatively uncomplicated venue matter, we are supposed to act like we did. However, the Court of Criminal Appeals, so far as we know, has never condemned Article 6701d, § 138, and the Texarkana Court of Civil Appeals has held that Article 6701d, § 138, repealed Article 827a, § 9-a, of the Penal Code, Simmons v. Germany, Tex.Civ.App., 231 S.W.2d 774, 776, and thus considered the same as a valid operative statutory provision.

'The Texarkana Court said:

"By points of error Nos. 2, 3 and 4, the appellants assert that the sections or subdivisions 9-a and 10 of Article 827a, P.C. of Texas, were repealed by the enactment of the Uniform Traffic Act Regulating Traffic on the Highways of Texas, passed by the 50th Leg. 1947, and which was in effect on the date of the accident. They assert that since the...