Jones v. Roche

• Decision Date: 06 July 1922
• Docket Number: (No. 843.)
• Parties: JONES et al. v. ROCHE.
• Court: Texas Court of Appeals

244 S.W. 227

JONES et al. v. ROCHE.

(No. 843.)

Court of Civil Appeals of Texas. Beaumont.

July 6, 1922.

Motion for Rehearing Withdrawn October 4, 1922.

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

Action by Mrs. J. J. Roche against W. A. Jones, the Interstate Casualty Company and another. From a judgment for plaintiff, the defendants named appeal. Affirmed.

Vinson, Elkins & Wood, of Houston, for appellants.

Ward & Ward, of Houston, for appellee.

HIGHTOWER, C. J.

This was a suit by the appellee, Mrs. J. J. Roche, against appellants, W. A. Jones and Interstate Casualty Company, and also against George F. Horton, for the recovery of damages because of personal injuries alleged to have been sustained by Mrs. Roche in consequence of negligence on the part of Jones and Horton, or rather in consequence of negligence of their employés attributable to them.

The accident in which Mrs. Roche received her injuries occurred at the intersection of Main and Commerce streets in the city of Houston, in a collision between a jitney car, owned and operated by Jones as a jitney car under the ordinances of the city of Houston, and a sand wagon, owned by Horton. Mrs. Roche was a passenger in the jitney car at the time, which was proceeding along Main street, and at the intersection of said streets the jitney car came in contact with the sand wagon, and the tongue of the wagon protruded through the side of the car and struck Mrs. Roche in the face and on other parts of her body, inflicting serious and permanent injuries. In her petition Mrs. Roche alleged certain acts of negligence on the part of Horton's driver of the sand wagon, and also on the part of the driver of the jitney car, who was an employé of Jones, and that all such negligence became the proximate cause of her injuries.

Liability against the Interstate Casualty Company was predicated upon the ground that the jitney car in which Mrs. Roche was a passenger at the time was insured against accidents by a policy or bond executed by said company under the ordinances of the city of Houston, for the benefit of such persons as might be injured in the operation of said jitney car, and who might be found to be entitled to recover for such injuries.

The specific negligence charged against the jitney driver, substantially stated, was (1) that at the time of the accident such driver was either driving abreast of or passing, or attempting to pass, at a street intersection another vehicle going in the same direction as the jitney, and that this was in violation of an ordinance of the city; (2) that the jitney was being operated at the time at too great a rate of speed under the circumstances attending the accident; and the third ground of negligence was as follows:

"That said defendant, his agents and employés engaged in the operation of said jitney, failed to exercise the degree of care incumbent upon him, for that he attempted to drive around the vehicle in front of him, and between two moving vehicles driving across said street, when said vehicles were in and upon said street crossing, and he could have by the exercise of due care observed said vehicles, and that they would probably be crossing said street, and that he either lacked due care by his failure to keep a proper lookout, or in failing to stop his jitney after observing such vehicle with which he would probably collide, and in the exercise of ordinary care with the use of the means at hand, he could, and should have stopped said jitney and avoided said collision."

Jones and the Interstate Casualty Company filed a joint answer, consisting of a general demurrer, general denial, and a plea of contributory negligence on the part of Mrs. Roche. Horton answered by general demurrer, general denial, and plea of contributory negligence on the part of Mrs. Roche, and specially pleaded that the injuries received by Mrs. Roche were caused solely by negligence on the part of the jitney driver. We have not stated the grounds of negligence charged against Horton's driver of the sand wagon, since that defendant was acquitted of all negligence charged, and it is not necessary to the disposition of any question on this appeal to further mention the negligence alleged against Horton.

The case was tried with a jury, whose verdict consisted of answers to special issues, and upon the verdict, judgment was rendered in favor of Mrs. Roche against the defendant Jones in the sum of $5,000, and against the Interstate Casualty Company in the sum of $2,500, the extent of its liability upon the bond, and in favor of the defendant Horton. From the judgment Jones and the Interstate Casualty Company have appealed, assigning a number of errors, for which they claim this court should reverse the judgment. We shall not mention all of the assignments specifically or numerically, but what we shall say will dispose of them all.

It is contended by appellant Interstate Casualty Company that the judgment against it was erroneous, for the reason that there was no sufficient pleading in the case showing a cause of action against it; it being contended that there was no pleading stating any ground of recovery against such appellant because there were no express allegations in the petition to the effect that the jitney involved in the accident was covered by the bond executed by such appellant. It is true, as claimed by this appellant, that there was no specific or express statement or allegation in the plaintiff's petition that the jitney car in which the plaintiff was a passenger at the time of the accident was covered by the bond executed by appellant as to its engine number, state number of the car, etc., but upon careful reading of the petition, it is quite manifest to this court that from the allegations of the petition as a whole the reasonable intendment to be indulged in favor of the petition is that the jitney car in which the appellee was a passenger at the time of the collision was covered by the bond executed by the Interstate Casualty Company. No special exception was directed against the petition, on the ground that it failed to specifically allege that the car involved in the accident was included in or covered by the bond, but only, as we have stated,...