Interstate Casualty Co. v. Hogan

• Decision Date: 10 May 1921
• Docket Number: (No. 691.)
• Citation: 232 S.W. 354
• Parties: INTERSTATE CASUALTY CO. OF BIRMINGHAM v. HOGAN.
• Court: Texas Court of Appeals

Page 354

232 S.W. 354

INTERSTATE CASUALTY CO. OF BIRMINGHAM v. HOGAN.

(No. 691.)

Court of Civil Appeals of Texas. Beaumont.

May 10, 1921.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by Frances Hogan against the Interstate Casualty Company of Birmingham and W. E. Brown. Judgment for plaintiff, and defendant Company appeals. Reversed and remanded.

Vinson, Elkins & Wood, A. C. Wood and W. A. Parish, all of Houston, for appellant.

N. C. Abbott and H. W. Freeman, both of Houston, for appellee.

WALKER, J.

Miss Frances Hogan recovered judgment in this case against E. W. Brown as the operator of a jitney line in Houston, and against the appellant on a bond of indemnity, executed under the provisions of an ordinance of the city of Houston, regulating the jitney service. No point is made against the validity of the bond, Miss Hogan's right to sue thereon, nor that the negligence of Brown constituted a cause of action against appellant, provided the car in which Miss Hogan was a passenger at the time of her injury was covered by the policy on which she predicates her cause of action. In view of the fact that we are reversing this cause for errors in the court's charge, we shall not discuss the weight of the testimony on the question just suggested, nor on the answers of the jury to other issues submitted to them. It is sufficient to say that these fact issues were raised by the testimony, and it was the duty of the court to submit them to the jury. By thus holding, we are not intimating that the testimony is sufficient to sustain the findings of the jury on these issues. All that we are holding is that it was the duty of the court to submit them to the jury.

The finding of the jury that the driver of the jitney was negligent, and that such negligence was the proximate cause of the accident, necessarily involved a finding that the negligence of the driver of the truck, with which the jitney collided, was not the sole cause of Miss Hogan's injury. Grundy v. Greene, 207 S. W. 964; Eastern Texas Electric Co. v. Hunsucker, 230 S. W. 817; Eastern Texas Electric Co. v. Woods, 230 S. W. 498; McAdoo v. McClure, 232 S. W. 348; Railway Co. v. Cook, 214 S. W. 539. (The last four cited cases are from this court, the first three not yet officially reported.) On a submission under special issues, the questions should not be so framed as to become traps for the jury, and thereby lead them into conflicting answers.

No error was committed by the court in permitting Brown to testify that the car in which Miss Hogan was riding at the time of the accident in which she was injured was under the protection of appellant's bond. The issue requested by appellant as to the motor number of this car was on an evidentiary fact, and was properly refused.

Plaintiff was entitled to recover only the reasonable cost of her medical bill, etc. The pleadings should be so framed as to show that the items thus involved are reasonable, and the charge of the court should so limit the recovery.

Plaintiff's petition is not subject to the criticism that she does not plead that the alleged acts of negligence were the proximate cause of her injury. She sufficiently pleads the negligence, and says that she was injured thereby. This allegation was not excepted to, and as against a general demurrer all reasonable intendments are indulged in favor of the pleading.

Special issue No. 1 submitted to the jury was as follows:

"Was or was not the driver of the jitney car belonging to the defendant E. W. Brown at the time of said collision, negligent either in operating or driving said car down or on said incline in such a manner as to collide with said truck, in operating said car at a high and dangerous rate of speed, in attempting to pass said truck while operating at a high and dangerous rate of speed, or in turning said car to the left and immediately in front of said truck if it was so turned? Answer `He was.' or `He was not,' as you find the fact to be."

We think this issue was subject to the following objections:

(1) It was a charge on the weight of the testimony, in that it assumes: (a) That the driver was operating or driving the car down or on an incline in such a manner as to collide with the truck, thus leaving to the jury only the issue as to whether such act was negligence; (b) that the driver was operating the car at a high and dangerous rate of speed, leaving to the jury only the issue as to whether such act was negligence; (c) that the driver attempted to pass the truck while operating at a high and dangerous rate of speed, thus leaving to the jury only the issue as to whether that act was negligence. The facts thus assumed by the court were bitterly contested by appellant. Under the following authorities: Railway Co. v. Hartnett, 48 S. W. 773; Railway Co. v. Turner, 182 S. W. 357; Brewster v. City of Forney, 196 S. W. 636; Hines v. Mills, 218 S. W. 777; Harrell v. Railway Co. (Com. App.) 222 S. W. 221; Davis v. Southern Ry. Co., 147 N. O. 68, 60 S. E. 722 — this charge must be condemned as being on the weight of the evidence. Appellee would sustain this charge under Smith v. Smith, 213 S. W. 273; Railway Co. v. Stalcup, 167 S. W. 279-285; Railway Co. v. Webb, 178 S. W. 728; Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838; Railway Co. v. Parks, 73 S. W. 439; Railway Co. v. Shapard, 54 Tex. Civ. App. 596, 118 S. W. 596; So. Traction Co. v. Rogan, 199 S. W. 1135; O'Farrell v. O'Farrell, 56 Tex. Civ. App. 51, 119 S. W. 899. Under the most liberal construction of what was held by the courts in these cases, we do not believe this charge can be sustained.

(2) As we analyze this issue No. 1, it, in effect, submitted to the jury the following issues on the questions of negligence:

(a) "Was or was not the driver of the jitney car belonging to the defendant E. W. Brown at the time of the collision negligent either in operating or driving said car down on said incline in such a manner as to collide with said truck?"

(b) "Was or was not the driver of the jitney belonging to the defendant E. W. Brown at the time of said...