Gregg v. De Shong

• Court: Texas Court of Appeals
• Writing for the Court: Dunklin
• Citation: Gregg v. De Shong, 107 S.W.2d 893 (Tex. App. 1937)
• Decision Date: 28 May 1937
• Docket Number: No. 13555.,13555.
• Parties: GREGG v. DE SHONG.

107 S.W.2d 893

GREGG v. DE SHONG.

No. 13555.

Court of Civil Appeals of Texas. Fort Worth.

May 28, 1937.

Rehearing Denied July 2, 1937.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by Marvin Gregg against Pete De Shong. From the judgment, the plaintiff appeals.

Reversed and remanded.

Benson & Benson, of Bowie, and C. T. Gettys and Nolen L. Sewell, both of Decatur, for appellant.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellee.

DUNKLIN, Chief Justice.

This suit grew out of a collision between a Ford automobile owned and driven by Marvin Gregg and a motor freight truck on the state highway at the outer edge of the town of Alvord, in Wise county. As a result of the collision the automobile was demolished and Gregg sustained severe personal injuries, for which he sought damages against Pete De Shong, the defendant. It was alleged that the defendant was the owner of the truck which, at the time of the accident, was being driven by one of his employees in the discharge of the duties of his employment; that the collision resulted from the negligence of the driver of the truck, which was the proximate cause of the collision and the resulting consequences noted.

Plaintiff alleged that the name of the truck driver was unknown to him but well known to the defendant.

According to allegations in the petition, the accident occurred after dark about 9:30 o'clock on October 13, 1934, while he was driving his automobile on the main highway running between the towns of Alvord and Decatur, at a rate of speed of about ten or twelve miles per hour; that he was on the right side of the highway; and that his car was run into by the truck coming in an opposite direction from plaintiff at a high rate of speed and while being driven on the wrong side of the highway, although there was ample room for the truck to pass plaintiff's car without colliding with it.

According to further allegations, as a result of the collision the left side of plaintiff's automobile was crushed, broken, and driven back against him, resulting in serious and painful injuries to his arm, wrist and shoulders, and other portions of his body, on account of which he was confined in the hospital for treatment for a long while, incurring much expense incident thereto.

Testimony showed without contradiction that Pete De Shong operated a line of trucks in the transportation of freight between the towns of Amarillo and Dallas and the place where the collision occurred was on that line. Plaintiff testified that he did not know the driver of the truck that collided with his car and had been unable to discover his name and whereabouts. He introduced testimony sufficient to support his allegations as to how the collision occurred, the injuries sustained by him as the result of the collision, and the negligence of the driver of the truck, which was the proximate cause of those injuries.

According to testimony introduced by plaintiff, the truck in controversy had the name "Pete De Shong" printed on the sides or front in the same way as all other trucks owned and used by the defendant on that line, and he relied upon those facts, in connection with testimony of defendant's truck drivers hereinafter noted, to show defendant's ownership of that truck, and to support his allegations that its driver was an employee of the defendant engaged in performing the duties of his employment at the time of the collision.

J. L. Pate testified for the defendant that he was traffic manager in charge of all operations of defendant's trucks between Dallas and Amarillo, and that from defendant's purchase records and invoices the only trucks used by the defendant on or prior to October 12, 13, and 14, 1934, were numbered from 1 to 24, inclusive. Other witnesses testified to the same effect.

Defendant then introduced testimony of other witnesses and office records made of the movements of all the trucks then in use on the line of traffic between Dallas and Amarillo, showing the times of departure and arrival of different trucks at different times at Dallas and Amarillo, and several stations intervening between those two towns. Those trucks were numbered 2, 8, 10, 12, 13, 20, 22, inclusive. The testimony showed that all other trucks owned by defendant at the time were used for pick-up traffic around Amarillo or in other lines of traffic between Amarillo and points in Oklahoma. It is sufficient to say that according to the testimony so offered none of the trucks in use between Amarillo and Dallas were at the place of collision at the time it occurred.

On cross-examination by counsel for plaintiff of witness J. L. Pate, defendant's traffic manager, he testified that defendant had owned and sold three other trucks of like description with the name of Pete De Shong printed on the sides or front, and witness did not know the names of the purchasers or what had become of those trucks and no testimony was offered by plaintiff bearing on that point.

At the conclusion of the evidence, the court sustained defendant's motion for an instructed verdict in his favor, and this appeal has been prosecuted by the plaintiff from a judgment based upon the verdict returned in obedience to that instruction.

The controlling question in controversy on this appeal is whether or not plaintiff made out a prima facie case of negligence of the defendant entitling him to a submission of that issue to the jury.

The case of Mrs. Baird's Bakery v. Davis (Tex.Civ.App.) 54 S.W.(2d) 1031, 1032, was a suit by appellee Davis against appellant for damages for personal injuries sustained by him in a collision with a motortruck alleged to belong to appellant and brought about by the negligence of the driver who was appellant's agent and in the discharge of the duties of his employment at the time. The only evidence introduced to establish such agency was the lettering "Mrs. Baird's Bakery" on the cab of the truck. Appellant offered no testimony to rebut the inference of such agency. We quote the following from the opinion of Chief Justice Conner in that case:

"The jury are authorized to draw all lawful conclusions from facts proven in the effort to arrive at a verdict, and, when it is considered that designation of the names shown upon commercial trucks are familiar and generally indicate ownership, and when it is further considered that the truck at the time was being driven during business hours and in trade territory, and also that the defendant, in whose breast rests the actual knowledge of the truck's ownership and its mission, refuses to testify, deny, or disprove the legitimate inferences to be drawn from the name and signs shown, we are not prepared to say that prima facie evidence at least was presented, and hence the court was required to submit the issue to the jury and properly refused the peremptory instruction.

"In the case of Globe Laundry v. McLean, 19 S.W.(2d) 94, it was held by the Beaumont Court of Civil Appeals that testimony that defendant's insignia was printed on the truck striking the plaintiff, when uncontradicted and unexplained by defendant, was sufficient to raise the inference that defendant owned the truck and that it was being operated by one of its servants in the ordinary discharge of his employment. See, also, Rosenthal Dry Goods Co. v. Hillebrandt (Tex.Civ.App.) 299 S.W. 665; Oil Belt Power Co. v. Touchstone (Tex.Civ.App.) 266 S.W. 432, loc. cit. 440; Barron v. Texas Employers' Ins. Ass'n (Tex.Com. App.) 36 S.W.(2d) 464, loc.cit. 467."

A like conclusion under similar facts was announced in the following cases: Claer v. Oliver (Tex.Civ.App.) 62 S.W. (2d) 354, 355; Harper v. Highway Motor Freight Lines (Tex.Civ.App.) 89 S.W. (2d) 448.

In Globe Laundry v. McLean (Tex. Civ.App.) 19 S.W.(2d) 94, 95, this excerpt is quoted from Howell v. Mandelbaum & Sons, 160 Iowa, 119, 140 N.W. 397, Ann.Cas.1915D, 349: "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."

As noted in those cases, the defendant failed to introduce evidence to rebut the inference of agency arising from evidence of ownership of the vehicle.

In his brief here appellee concedes the soundness of the foregoing decisions in the absence of any evidence rebutting the inference arising from testimony offered by plaintiff in the first instance, but insists that the evidence introduced by him conclusively destroyed the inference relied on by appellee that at the time of the collision the truck was being operated by one of his employees and while in the discharge of the duties of his employment.

Houston News Co. v. Shavers (Tex. Civ.App.) 64 S.W.(2d) 384, 386 (writ of error refused), was a suit by Shavers against the News Company to recover damages for negligence of the driver of an automobile causing a collision resulting in injury to plaintiff. The evidence showed that defendant owned the vehicle in question and that it was being operated by its employee at the time of the collision. Those facts were relied on to support the inference of the further fact that at the...