Gladewater Laundry & Dry Cleaners v. Newman

• Decision Date: 10 May 1940
• Docket Number: No. 5527.,5527.
• Citation: 141 S.W.2d 951
• Parties: GLADEWATER LAUNDRY & DRY CLEANERS, Inc., v. NEWMAN.
• Court: Texas Court of Appeals

141 S.W.2d 951

GLADEWATER LAUNDRY & DRY CLEANERS, Inc., v. NEWMAN.

No. 5527.

Court of Civil Appeals of Texas. Texarkana.

May 10, 1940.

Rehearing Denied June 13, 1940.

Error from District Court, Gregg County; D. S. Meredith, Judge.

Action by W. R. Newman against Gladewater Laundry & Dry Cleaners, Incorporated, for injuries allegedly sustained by plaintiff in a collision between plaintiff's automobile and defendant's laundry truck. To review a judgment for plaintiff, defendant brings error.

Reversed and remanded.

Battaile & Burr, of Houston, and Stinchcomb, Kenley & Sharp, of Longview, for plaintiff in error.

Jones & Jones, of Marshall, for defendants in error.

HALL, Justice.

Defendant in error instituted this suit in the District Court of Gregg County against plaintiff in error for damages resulting from injuries sustained by him in a collision between his car and plaintiff in error's laundry truck, driven by one Ernest Thompson. The defendant in error alleged: "* * * That on February 7th, 1936, W. R. Newman and wife, Mrs. W. R. Newman, were proceeding in a southwesterly direction toward Mt. Pleasant along the Union Hill road, Highway 49, between Daingerfield and Mount Pleasant and near the Harts Creek bridge, and while on said road a motor vehicle operated by the defendant, through its agent, servant, and employee, negligently and carelessly drove its motor vehicle into the one in which W. R. Newman and wife, Mrs. W. R. Newman, were riding, crashing into them from their rear, inflicting upon plaintiff severe and permanent personal injuries as more fully hereinafter set out; that at the time of said collision, defendant's truck was being operated by its agent, servant and employee, who, at all times stated herein was acting within the scope of his employment and actively engaged in forwarding the business of the defendant." It was specially alleged by defendant in error that plaintiff in error at the time and place of said collision, acting by and through its agent, was operating its laundry truck at a rate of speed in excess of 45 miles per hour without "adequate brakes kept in good working order," which acts constituted negligence as a matter of law. In the alternative, it was alleged that the laundry truck was "negligently and carelessly being operated at a higher rate of speed than a reasonable and prudent driver would have operated it under the same or similar circumstances at the time and place of the collision. * * * In that the defendant negligently and carelessly failed to have its brakes and steering apparatus in good working condition so that the driver of defendant's (plaintiff in error's) car would be able to control said car and slow its speed down and avoid striking plaintiff's (defendant in error's) car." It was alleged that these acts of negligence on the part of plaintiff in error's employee, Ernest Thompson, was a proximate cause of the injury to defendant in error. Numerous other specific acts of negligence were alleged by defendant in error, but only those set out above were submitted to the jury.

Plaintiff in error relied upon a general demurrer, general denial, and alleged specially that defendant in error was guilty of contributory negligence in the following particulars: (1) "At the time and place of the collision alleged by plaintiff (defendant in error) he suddenly stopped his car on the highway in front of the truck being driven behind him by Ernest Thompson, without giving any visible or audible signal or warning of his intention to so stop his said car;" and (2) "at the time and place of the collision alleged by plaintiff (defendant in error) he suddenly and materially reduced the speed of the vehicle which he was operating in front of the truck or vehicle being operated by Ernest Thompson without giving any visible or audible signal or warning of his intention to so reduce such speed." It was alleged further that these acts of contributory negligence were the proximate cause of the injury to defendant in error. Trial was to a jury on special issues, which resulted in a verdict and judgment for defendant in error.

By its 7th proposition, plaintiff in error asserts that the trial court committed reversible error in permitting defendant in error, over its objections timely made, to introduce in evidence the compensation insurance policy carried by it for the benefit of its employees.

On trial of this case in the court below defendant in error introduced in evidence the deposition of E. E. Glenn, secretary and treasurer of plaintiff in error, wherein Glenn stated that his company carried compensation insurance covering its employees, and that it also carried a liability insurance policy covering the laundry truck involved in this collision. It was the contention of plaintiff in error in the court below that Thompson was an independent contractor and not its employee. The facts are undisputed that on or about February 7, 1936, plaintiff in error's laundry truck crashed into the rear of defendant in error's automobile. This happened about two miles south of Mt. Pleasant on State Highway No. 49. It was also shown without dispute that the laundry truck had the name of the Gladewater laundry painted on its sides, that it was loaded with laundry, and that Ernest Thompson was driving the truck at the time of the collision. These facts standing alone raised the presumption (1) that the truck belonged to plaintiff in error; and (2) that Ernest Thompson, the driver, was acting for plaintiff in error at the time of the collision. Globe Laundry v. McLean, 19 S.W.2d 94, Tex.Civ.App., Beaumont; Mrs. Baird's Bakery v. Davis, 54 S.W.2d 1031, Tex.Civ.App., Ft. Worth; Claer v. Oliver, 62 S.W.2d 354, Tex.Civ. App., Beaumont; Harper v. Highway Motor Freight Lines, 89 S.W.2d 448, Tex. Civ.App., Dallas; Roadway Express v. Gaston, 90 S.W.2d 874, T...