Gulf Refining Co. v. Bonin

• Decision Date: 16 June 1922
• Docket Number: (No. 832.)
• Citation: 242 S.W. 776
• Parties: GULF REFINING CO. v. BONIN.
• Court: Texas Court of Appeals

242 S.W. 776

GULF REFINING CO. v. BONIN.

(No. 832.)

Court of Civil Appeals of Texas. Beaumont.

June 16, 1922.

Rehearing Denied June 28, 1922.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by J. N. Bonin against the Gulf Refining Company. Judgment for plaintiff, and the defendant appeals. Affirmed.

D. Edward Greer, John E. Green, Jr., Baker, Botts, Parker & Garwood, and Y. D. Mathes, all of Houston, for appellant.

Presley K. Ewing, L. H. Kenner, and J. P. Rogers, all of Houston, for appellee.

WALKER, J.

Appellant makes the following statement from the pleadings of the parties.

"Plaintiff alleged that the defendant, Gulf Refining Company, was a corporation duly incorporated; that on or about the 20th day of November, A. D. 1920, the deceased, Porter Bonin, was riding a bicycle south through a tunnel forming a part of North Main street, a public highway within the business district of the city of Houston; that it was customary for vehicles to travel in only one direction in said tunnel, and not to pass or attempt to pass another vehicle therein, as such could not be done with reasonable safety; that while the deceased was riding through said tunnel, defendant's truck entered the tunnel, overtook and collided with the deceased, and so injured him that he shortly thereafter died. Plaintiff further alleged that said automobile truck was `owned by and being used in the business of the defendant, and in the charge, management, and control of its agent and employee in that behalf, to wit, one Habermacher, who was the driver and chauffeur of said automobile truck, and then and there acting within the scope of his employment of the defendant. * * *'

"Plaintiff alleged that the death of said child was caused by the `negligence of the defendant, by and through its agent and employee aforesaid, in the conduct, management, and propulsion of said automobile truck' in the following particulars:

"(a) Failing to drive the truck in a careful and prudent manner.

"(b) Driving at a faster rate of speed than was proper.

"(c) Undertaking to pass the deceased on the bicycle at such a rate of speed as to endanger the life and limb of said child.

"(d) In passing or attempting to pass said bicycle.

"(e) In operating said automobile truck in unnecessary proximity to the child.

"Plaintiff further pleaded that the driver discovered the child's peril, or in the exercise of due care, could have discovered it, and further alleged `that the defendant was guilty of negligence attributable to it in each and all of the particulars aforesaid.'

"There were no allegations, no proof, and no finding by the jury that there was any negligence in the case except the negligence of the driver, Habermacher. The plaintiff's petition also contained the formal requisites, such as the relationship of the deceased to the plaintiff, his contributions, etc., and plaintiff's damage was laid at $40,000.

"The defendant answered by a general demurrer, special exception, and general denial, and pleaded contributory negligence on the part of the deceased. The defense of contributory negligence was abandoned and that issue was not submitted to the jury."

To the foregoing statement we add the following specific averments from appellee's petition:

"That while such child, Porter Bonin, was riding through said tunnel as aforesaid, being on the space between the west rail of said railroad tracks and the west wall of said tunnel, going slowly, probably four to five miles an hour, a large oil motortruck, going southward, with a filled oil tank of about 500 gallons capacity, and weighing about 500 pounds or more, entered such tunnel from the north side thereof, running at an excessively high rate of speed for travel through such tunnel, to wit, at more than 10 miles per hour, and proceeded to pass such child on his bicycle in said tunnel and to do so without slowing down or lessening such speed at all, and in so attempting to pass such child said automobile truck came in contact with him, struck him, ran over and against him, and so wounded, crushed, mangled, and injured him that he then and there, or within a few minutes thereafter, in consequence died."

"That said automobile truck was then and there owned by, and being used in, the business of the defendant, and in the charge, management, and control of its agent and employee in that regard, to wit, one Habermacher, who was the driver and chauffeur of said automobile truck, and then and there acting within the scope of its business intrusted to him."

"That the injuries to and death of said minor child, Porter Bonin, were proximately caused by the negligence of the defendant, by and through its agent and employee aforesaid, in the conduct, management, and propulsion of said automobile truck. * * *"

On a trial to a jury on special issues, answered so as to sustain the allegations of the petition, judgment was entered for appellee. Appellant did not ask for an instructed verdict, but asked for a special charge on appellee's measure of damages, and specially excepted to the charge as given on that issue. The verdict of the jury was received and filed on the 7th day of May, 1921, and on the 24th day of May following appellant filed the following motion:

"Now comes the defendant, Gulf Refining Company, and moves the court to set aside the judgment heretofore entered in favor of the plaintiff, and enter judgment in favor of the defendant herein, notwithstanding the verdict of the jury, for the reason that plaintiff has no legal right to recover damages for death caused by defendant's agent or servant"

— which motion was denied. Due exception was taken to the court's action on this motion, and to the judgment entered in appellee's favor, but no request for new trial was filed, nor were assignments of error filed in the trial court.

On the theory of fundamental error, appellant presents in its brief the following assignments and propositions:

Assignments of error:

"(1) The court erred in entering judgment in favor of the plaintiff and against the defendant, since the jury's verdict was on special issues relating only to the negligence of defendant's chauffeur, and the amount of the damages, and there was no pleading nor evidence of any negligence of the defendant corporation or any of its vice principals."

"(2) The trial court erred in failing and refusing to enter judgment in favor of the defendant and against the plaintiff, since the plaintiff pleaded, and the jury found that the negligence which caused the death of Porter Bonin was the negligence of the defendant's chauffeur, a mere servant."

Propositions:

"(1) The act passed by the Thirty-Third Legislature which appears as article 4694 in Vernon's Sayles' Ann. Civil Statutes of 1914, having been held unconstitutional and void so far as it undertook to impose liability on a natural person for damages resulting from death caused by the negligence of his agent, is wholly void, because the Legislature did not intend the act to be effective at all if not in its entirety." See Rodgers v. Tobias (Tex. Civ. App.) 225 S. W. 804.

"(2) The 1913 act being void, the act of 1892 (page 369 of volume 10, Gammell's Laws of Texas) was in effect at the time of the accident which resulted in Porter Bonin's death. Under that statute there is no liability imposed on a corporation for damages resulting from death caused by the negligence of its agents or servants."

"(3) If it is said that the Legislature did intend to impose liability on a corporation for damages on account of death caused by the negligence of a servant or agent without imposing a similar liability on natural persons, then such act was violative of section 19 of article 1 of the Texas Constitution and the Fourteenth Amendment to the Constitution of the United States."

Opinion.

On the facts reflected by the statement above made, we believe appellant has waived its constitutional rights under the Constitution of the state of Texas, as well as under the federal Constitution, and is now estopped to assert such rights on this appeal. This conclusion is based on the following facts: (a) Appellant did not plead its constitutional rights. (b) There is nothing in the record to show that such rights were asserted in any way in the trial court. The issue was not raised by motion for instructed verdict nor by motion for a new trial. The motion for judgment non obstante veredicto did not specifically present the issue. (c) Appellant participated in the trial of the case, relying only on its general denial, excepted to the charge as given, without calling the constitutional question to the court's attention, and submitted a special charge instructing the jury on the proper measure of damages from appellant's view of the law. Thus the case was prosecuted to judgment, and the only issue raised by appellant was against the facts raised by appellee's petition. Neither appellee nor the trial court had the benefit of the view of the law asserted by appellant on this appeal. We believe these facts establish both waiver and estoppel against appellant. Authorities:

In 3 C. J. 718-721, it is said:

"One of the most important results of the rule that questions which are not raised in the court below cannot be raised in the appellate court is that a party cannot, when a cause is brought up for appellate review, assume an attitude inconsistent with that taken by him at the trial, and that the parties are restricted to the theory on which the cause was prosecuted or defended in the court below. Thus, where both parties act upon a particular theory of the cause of action, they will not be permitted to depart therefrom when the case is brought up for appellate review. And the same is true where the parties act upon a particular theory of defense or of opposition thereto."

In 12 C. J. 773, it is said, with copious citation of authority:

"A person may waive his constitutional rights by taking part...