Houston Electric Co. v. Potter

• Decision Date: 17 December 1931
• Docket Number: No. 9622.,9622.
• Citation: 51 S.W.2d 754
• Parties: HOUSTON ELECTRIC CO. v. POTTER et al.
• Court: Texas Court of Appeals

51 S.W.2d 754

HOUSTON ELECTRIC CO. v. POTTER et al.

No. 9622.

Court of Civil Appeals of Texas. Galveston.

December 17, 1931.

On Rehearing April 26, 1932.

Dissenting Opinion on Rehearing May 2, 1932.

Further Rehearing Denied June 23, 1932.

Appeal from District Court, Harris County; Allan B. Hannay, Judge.

Action by Verna Alice Potter and husband against the Houston Electric Company and another. From an adverse judgment, the named defendant appeals.

Judgment reversed, and cause remanded.

W. M. Ryan, G. G. Gannon, and Baker, Botts, Andrews & Wharton, all of Houston, for appellant.

King, Wood & Morrow, of Houston, for appellees Potter.

Vinson, Elkins, Sweeton & Weems and C. M. Hightower, all of Houston, for appellee Earl T. Zylicz.

LANE, J.

In view of the fact that the plaintiffs are not on this appeal contesting the judgment rendered in favor of the defendant Earl Zylicz, we deem the following statement of the nature and result of the suit sufficient for the purpose of disposing of this appeal:

This suit was instituted by the filing of a petition in the 113th district court of Harris county, Tex., wherein it is recited that "plaintiffs, Verna Alice Potter, joined pro forma herein by her husband, W. D. Potter," were bringing suit against Houston Electric Company and Earl T. Zylicz.

It is alleged that "plaintiff, Verna Alice Potter, is now, as she was on and prior to October 31st, 1928, the wife of the plaintiff W. D. Potter."

It is alleged that, while Verna Alice Potter was riding in an automobile belonging to Earl T. Zylicz, being driven by the wife of said Zylicz, as a guest, a bus owned by the Houston Electric Company was negligently driven by its driver against said automobile, in that said driver failed to have the bus under reasonable and proper control under the surrounding circumstances; that said driver failed to keep a reasonable lookout for approaching vehicles at the point of the collision and without giving warning by blowing the horn of the bus, or otherwise, of his approach; that the collision occurred at the intersection of two streets in the city of Houston; and that the driver of the bus approached and attempted to cross such intersection at a high and dangerous rate of speed in the light of the attending circumstances.

"In that the operator and driver of the defendant, Houston Electric Company's bus failed to yield the right of way to the automobile in which plaintiff, Verna Alice Potter was so riding, said automobile having reached the intersection of said streets and entered therein prior to the time that said defendant's bus reached such intersection and contrary to and in violation of the law with reference to the rule of the road.

"In that the operator and driver of the defendant, Houston Electric Company's bus, after actually seeing and discovering that the car in which plaintiff, Verna Alice Potter was riding had entered the intersection of said streets before the bus had entered the same and while seeing and realizing the perilous position of said automobile and its occupants failed to exercise ordinary care to stop said bus, or so slacken its speed or change its course, so as to have avoided said collision and accident, which he could have done with the means at hand and in safety to said bus and its occupants."

It was alleged that Verna Alice Potter, by reason of said collision, as a result of the negligence of the driver of the bus, suffered great mental and physical anguish and pain (setting out specifically the nature of her injuries), to her damage in the sum of $25,000.

The allegations above stated were followed by the following allegations:

"In connection with the paragraph next above, describing plaintiff's said injuries and her resulting suffering therefrom, plaintiffs further allege that up to and prior to the date of said accident, plaintiff, Verna Alice Potter, was a young woman in good health and had never suffered from any of the ailments and injuries alleged; that she was accustomed, in the station of life in which she lived, to entertain at her home and to attend parties, teas and social gatherings with her friends and at her church; that as a result of the presence of said scars on her face, which are noticeable to her friends and the people whom she meets, some of whom have made to said plaintiff remarks about same, including expression of the belief, until otherwise explained, that the scars upon her face, resulting from said injuries, were birthmarks, she suffers great humiliation, mortification, distress of mind and mental anguish; that her deformed and disfigured condition is constantly upon her mind when in company, resulting in her great humiliation and embarrassment, all causing her such distress of mind and mental anguish, as a result of which she feels too greatly embarrassed and humiliated to mix with her associates and friends as she did before and to entertain and attend entertainments and parties as she was accustomed to do, and from all of which she has been greatly damaged as is alleged in the paragraph next above.

"IX. That as a result of said injuries, it became necessary for plaintiffs to and they did, secure the attendance of a physician and surgeon to treat said injuries, to make X-Rays thereof, for the purpose of determining the course and progress of same, to employ nurses, to buy medicines and to remain in a hospital for many days, and in bed for many weeks, for all of which plaintiffs have paid and become obligated to pay the reasonable and customary charges for such services, aggregating the sum of Five Hundred ($500.00) Dollars; that in order to relieve her face from said scars or to lessen the effect thereof it will become necessary for plaintiff, Verna Alice Potter, to undergo a serious plastic operation, with assurance that the same will be successful, in the removing of said scars and disfigurement and to remain in a hospital for many weeks because thereof, for which plaintiffs will be compelled to pay a further charge for such operation, hospital service, nurse hire in the sum of One Thousand ($1,000.00) Dollars which is the usual and customary charge for like service, all to plaintiffs' further actual damage in the sum of Fifteen Hundred ($1500.00) Dollars.

"Wherefore, defendants each having answered herein, plaintiffs pray that upon a final hearing and trial hereof, they have judgment for the actual damages so sustained and as herein pleaded, together with six per cent. interest thereupon from the date of judgment until paid, and for all costs in this behalf incurred, or to be incurred, and for all such other and further relief, special and general, in law and in equity, to which they may show themselves justly entitled upon said trial, and for all of which they will ever pray." (Italics ours.)

"Defendant Zylicz filed an answer consisting, so far as is pertinent here, of a general denial, a plea of contributory negligence on the part of Mrs. Potter, the plaintiff, and a plea that the negligence of defendant, Houston Electric Company, in various particulars alleged, was the sole proximate cause of the accident. The defendant Zylicz filed no cross-action against Houston Electric Company.

"The answer of defendant Houston Electric Company consisted of a general demurrer, a general denial, a plea of contributory negligence on the part of the plaintiff, Mrs. Potter, a plea that the sole proximate cause of the accident was the negligence of Mrs. Zylicz in various particulars alleged, and a plea that the two ladies were, at the time, engaged in a joint enterprise."

Further pleading in the alternative, the electric company alleged as follows:

"E. T. Zylicz owned the automobile in question which collided with the defendant's bus at the time and place complained of in the petition of plaintiffs in this cause, and he maintained and operated said car as a `family car' for the use, benefit and enjoyment of his family including his wife, Mrs. E. T. Zylicz; that at the time and occasion complained of in this suit Mrs. E. T. Zylicz was driving the automobile with the permission and under the authorization of her husband, E. T. Zylicz; that in driving the car at the time and place complained of in the petition of plaintiffs herein, Mrs. E. T. Zylicz was negligent in the driving of said automobile and the manner and way in which she drove same before and at the time of said collision and had it not been for her negligence the collision would not have happened; that the negligence of Mrs. E. T. Zylicz in the driving of the automobile of the defendant E. T. Zylicz was a proximate cause of the collision which happened between the said automobile and a bus of this defendant at the time and place complained of in the petition of plaintiffs herein and the resulting injuries, if any, therefrom to Mrs. Verna Alice Potter, and the defendant, Houston Electric Company by way of plea over and against the said E. T. Zylicz, respectfully aver and plead that if the driver of its bus was negligent in any respect complained of in the petition of plaintiffs herein (which is expressly denied) that the negligence, if any, of such driver was merely passive whereas the negligence of Mrs. E. T. Zylicz was active and had it not been for the active negligence of Mrs. E. T. Zylicz at the time and place in question Mrs. Verna Alice Potter would not have received the injuries complained of and the collision would not have happened; and the Houston Electric Company pleads that if any judgment be recovered by the plaintiffs either or both against this defendant Houston Electric Company that it have judgment for like amount over and against the said E. T. Zylicz; or in the alternative, defendant pleads that under all of the facts and circumstances surrounding the happening of the collision between the automobile of E. T. Zylicz on the occasion in question and the bus of this defendant that the negligence of the driver of the automobile, Mrs. E. T. Zylicz,...