Gause-Ware Funeral Home v. McGinley, 12458.

• Decision Date: 09 May 1931
• Docket Number: No. 12458.,12458.
• Citation: 41 S.W.2d 433
• Parties: GAUSE-WARE FUNERAL HOME v. McGINLEY.
• Court: Texas Court of Appeals

41 S.W.2d 433

GAUSE-WARE FUNERAL HOME v. McGINLEY.

No. 12458.

Court of Civil Appeals of Texas. Fort Worth.

May 9, 1931.

Rehearing Denied June 27, 1931.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by J. M. McGinley against the Gause-Ware Funeral Home, a copartnership. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

See, also, 21 S.W.(2d) 347.

Chas. T. Rowland and P. Walter Brown, both of Fort Worth, for appellants.

McLean, Scott & Sayers, of Fort Worth, for appellee.

CONNER, C. J.

J. M. McGinley, on July 16, 1927, filed suit against the Gause-Ware Funeral Home, a copartnership composed of George L. Gause and J. M. Ware, alleging, in substance, that on February 15, 1927, he drove his Ford coupé from the east into the intersection of Throckmorton and West Third streets in the city of Fort Worth, with the intention of turning south on Throckmorton street, and, after passing the center of Throckmorton street, he held out his left hand to indicate that he was turning south, and just about the time the movement to turn was completed an ambulance owned by Gause-Ware Funeral Home, driven by an agent of said home by the name of Martin, drove said ambulance against his coupé, and that he received severe and permanent injuries as a result of the collision of said two vehicles; that he was driving his car at a very slow rate of speed, but that the ambulance was being driven in a reckless manner at a high and dangerous rate of speed; that Throckmorton street runs north and south and West Third street runs east and west; that he was free from negligence, but that the defendants and their agent and employee in charge of the ambulance were guilty of negligence in the particulars hereinafter enumerated, which was the proximate cause of his injuries received as the result of the impact of the two cars, to wit:

"(a) In operating said ambulance at said time and place at a greater rate of speed than 12 miles per hour and in violation of said section 57, title 7, Revised City Ordinances aforementioned.

"(b) In operating said ambulance upon a public street within the corporate limits of the City of Fort Worth at a greater rate of speed than 20 miles per hour in violation of positive law of the State of Texas.

"(c) In operating said ambulance at such rate of speed upon said street as to endanger the life and limb of plaintiff and the safety of his property in violation of positive law of the State of Texas.

"(d) In failing to slow down the speed of said ambulance to 15 miles per hour in attempting to pass plaintiff's automobile upon said street, all in violation of the laws of the State of Texas.

"(e) In operating said ambulance at the rate of speed at which it was traveling at said time and place in view of the conditions and circumstances existing thereat. And in operating said commercial vehicle on said public street at a greater rate of speed than 15 miles per hour in violation of state law.

"(f) In failing to sound the horn of said ambulance, or otherwise notify plaintiff of its approach and close proximity in time to have permitted plaintiff to have sought a place of safety.

"Each and all of which said acts, jointly and severally, were the direct and proximate cause of said injuries and damage as aforesaid."

Defendants urged exceptions, and, in addition to a general denial, alleged that under the laws of the state and the ordinances of the city of Fort Worth the ambulance had the right of way in the intersection of said Throckmorton and West Third streets, and that plaintiff failed to yield said right of way to said ambulance, but negligently drove his car into the intersection of said streets in defiance of said laws and ordinances, negligently turned his car in a southerly direction without giving a signal plainly visible or audible to the driver of the ambulance indicating that he was going to turn, and that said negligence of plaintiff was a proximate contributing cause of the injuries which he received as a result of the collision of said two vehicles.

The case was tried before a jury on special issues, and resulted in a verdict and judgment for plaintiff, from which judgment this appeal has been prosecuted.

The plaintiff alleged that "defendants had placed in charge of said motor vehicle, as their agent and employee, a man by the name of Martin, and while the said Martin was driving and operating said ambulance at a high and dangerous rate of speed," etc., a collision was brought about. The defendants not only presented a general demurrer, but also specially excepted to the sufficiency of the petition on the ground that it was not alleged that Martin was "at the time and place in performance of some business of the defendants."

The court overruled the special exception, and error has been assigned to the ruling. We think this assignment must be sustained. Facts not alleged, though proven, will not support a judgment. See Hall v. Jackson, 3 Tex. 305. It was certainly necessary to prove that Martin was at the particular time of the collision engaged in the performance of his employer's business. See I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; G., H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039; Van Cleave v. Walker (Tex. Civ. App.) 210 S. W. 767; Miller v. Pettigrew (Tex. Civ. App.) 10 S. W.(2d) 168; Rew v. Stoddard (Tex. Civ. App.) 225 S. W. 836; Cole v. Wright (Tex. Civ. App.) 18 S.W.(2d) 242; Langford v. El Paso Baking Co. (Tex. Civ. App.) 1 S.W.(2d) 476.

In the case of Hill v. Staats, supra, the defendant's chauffeur, after having been placed in charge of the automobile, drove the defendant's wife and children to a circus, after which, and pending the performance, he drove away on a mission of his own and ran down the plaintiff. It was held that the defendant was not liable, since at the particular time he was acting outside the scope of his employment. The other cited cases will as clearly show the insufficiency of the allegations.

While the witness Scott Martin, the driver of the ambulance, was testifying, he was asked that if on the day following the accident Homer Bellew did not ask him, "How in the world did you happen to hit McGinley?" and that if he (Martin) in that conversation did not reply, "I declare I don't know. I was driving down the street and the first thing I knew I was right on him." Martin denied having made the statement to Bellew as imputed, and Bellew was later permitted...