Globe Laundry v. McLean

• Decision Date: 06 June 1929
• Docket Number: (No. 1849.)
• Citation: 19 S.W.2d 94
• Parties: GLOBE LAUNDRY v. McLEAN.
• Court: Texas Court of Appeals

Page 94

19 S.W.2d 94

GLOBE LAUNDRY v. McLEAN.

(No. 1849.)

Court of Civil Appeals of Texas. Beaumont.

June 6, 1929.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by Mrs. Rena Marrs McLean against the Globe Laundry. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Crook, Lefler, Cunningham & Murphy, of Beaumont, for appellant.

W. D. Gordon, of Beaumont, for appellee.

O'QUINN, J.

On the 9th day of January, 1925, while crossing Magnolia avenue at the intersection of Calder avenue, in the city of Beaumont, appellee was struck and seriously injured by a Ford truck. This suit was brought by her against appellant for the resultant damages. She alleged that the truck was owned by appellant; that it was being operated by one of its servants in the due discharge of his duties to appellant; that the servant was negligent in operating the truck; and that such negligence was the proximate cause of her damages. She specially pleaded her grounds of negligence as follows: "The defendant, operating a truck in charge of its employee and servant one M. F. Scott, was driving said truck in a southerly direction on said Magnolia Avenue at a great rate of speed, to wit; in excess of approximately thirty (30) miles an hour; and in the operation of said truck, which was propelled by gasoline motor power, the defendant, through its servant aforesaid, was wholly reckless of the rights of the plaintiff and of all other pedestrians similarly situated with plaintiff."

It is necessary to mention only appellant's general denial. The trial was to the court without a jury and resulted in a judgment in appellee's favor for $1,400. Appellant seeks for reversal of the case on the following grounds:

(a) There was no evidence that it owned the truck in question.

(b) There was no evidence that the driver of the truck was its servant or in discharge of any duty of his employment at the time of the accident.

These points will be considered together. The following was all the evidence on this issue: "That was a Ford truck. It was a truck, enclosed truck, with the Globe Laundry insignia on it. I didn't know the name of the man driving that truck. I might—I couldn't say that I knew the man's name; I knew his face, but I don't—I don't know if I would recognize him here in the court room or not. I see so many folks driving trucks that I couldn't say. I know it was a Globe Laundry truck."

Appellant says the statement, "I know it was a Globe Laundry truck," was a mere conclusion of the witness drawn from the fact that "the Globe Laundry insignia" was painted on the truck. We agree with this construction of this phase of the testimony. The witness was not testifying to the ownership of the truck from his independent knowledge, but only from the fact that appellant's name was printed on the truck. That was all the evidence before the witness. But the testimony quoted, uncontradicted and unexplained by appellant—and appellant offered no testimony —was sufficient to raise the inference that appellant owned the truck and that it was being operated by one of its servants in the ordinary discharge of the duties of his employment. Howell v. Mandelbaum, 160 Iowa, 119, 140 N. W. 397, Ann. Cas. 1915D, 349, and Edgeworth v. Wood, 58 N. J. Law, 463, 33 A. 940, are directly in point. In the first case it was said: "If, however, the name of the defendant was painted on the wagon, as testified by the witness on cross-examination, it was to be inferred that the wagon belonged to defendant and the driver was handling the rig on its account. From identity of names identity of persons or corporations is to be inferred, and the wagon was such a one as retail merchants make use of in the transaction of their business. It is improbable that other than the owner would inscribe his name on a delivery wagon, and, as the wagon was one appropriate to defendant's business, a prima facie case was made out by this proof. The name on tools or vehicles and articles generally is commonly accepted as indicating ownership, and, though not of much probative weight, it is enough, in the absence to the contrary, to carry the issue to the jury. This rule is not unreasonable, for, if the inference is not correct, no one ordinarily is in a better situation to establish the fact than the party so named."

In Edgeworth v. Wood, it was said: "All the witnesses who saw the accident and noticed the wagon which ran over plaintiff unite in declaring that it was painted as were the wagons of the company, and that it was marked with the company's name and device. Considering the great improbability that any other owner of a wagon would thus paint and mark it, a plain inference could be drawn from the evidence that the wagon in question was in the ownership of the company. If that inference be drawn, it is sufficient to establish prima facie that the wagon, being owned by the company, was in its possession, and that whoever was driving it was doing so for the company."

(c) Appellant says there was no evidence that the speed at which the truck was being operated was negligence, in that it was the proximate cause of the accident.

Appellee pleaded only one ground of negligence, to wit, "a great rate of speed," which was "wholly reckless of the rights of the...