Jones v. St. John

• Decision Date: 11 February 1944
• Docket Number: No. 2426.,2426.
• Citation: 178 S.W.2d 181
• Parties: JONES v. ST. JOHN.
• Court: Texas Court of Appeals

178 S.W.2d 181

JONES v. ST. JOHN.

No. 2426.

Court of Civil Appeals of Texas. Eastland.

February 11, 1944.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Personal injury action by Vera Jones against R. F. St. John. Judgment for defendant, and plaintiff appeals.

Affirmed.

Letcher D. King, of Abilene, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellee.

GRISSOM, Justice.

Vera Jones sued R. F. St. John for damages alleged to have resulted from injuries suffered by her in an automobile collision. At the time of the collision Mrs. Jones was riding in a used automobile owned by St. John, an automobile dealer, and the car was being driven by Fulton Williams, an employee of St. John, whose duty it was to sell used automobiles. Also riding in the St. John car at said time was G. C. Farrow, another of defendant's automobile salesmen, and Mrs. Shipley. There was a collision between the St. John car, after 7 o'clock P.M. on Sunday, as it was proceeding westward from Abilene and near Sweetwater, with a stolen automobile, going east from Sweetwater toward Abilene, driven by Finis Grayson. Just before the collision, Williams, driving the St. John automobile and going west, met two automobiles going east. The Grayson automobile, going east, came around two eastbound automobiles at a very high rate of speed, estimated by some of the witnesses to be more than ninety miles an hour. The collision occurred either on the north side of the paved highway or off of the paved highway and near the fence on the north side of the highway. Mrs. Jones was injured.

Williams and Farrow were the agents of St. John, employed by him to sell his used automobiles. Plaintiff contends they were acting within the scope of their employment and trying to sell the used car, which Williams was driving, to Mrs. Jones at the time of the collision. Defendant contends that Williams and Farrow were not trying to sell an automobile; that they were not demonstrating the car; that they were merely engaged in a ride for pleasure, that is, that they were on a mission of their own and not engaged in furtherance of the business of defendant.

The case was submitted to a jury and it found that (1) Williams was an employee of St. John at the time of the collision; (2) at the time of the collision Williams was not "doing or performing anything in furtherance of the business or trade of the defendant"; (3) immediately prior to the collision Williams was not driving the St. John automobile down the center of the highway; (6) immediately prior to the collision Williams was driving the St. John car in excess of 60 miles per hour; (7) this was negligence; (8) but not a proximate cause of the collision; (9) the fact that the automobile driven by Grayson pulled out into the north half of the highway, in an attempt to pass another car going east immediately prior to the collision, was the sole cause of the collision; (10) the rate of speed at which Grayson was driving was the sole cause of the collision; and (11) the collision was the result of an unavoidable accident. In answer to question 12, "What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably compensate * * * Vera Jones for her injuries, if any, that were directly and proximately caused by the collision in question", the jury answered, "No money." Judgment was rendered on the verdict for defendant, and plaintiff has appealed.

Several of plaintiff's points are directed at the action of the court in permitting defendant to interrogate plaintiff about a petition filed by her in a damage suit in Harris County, and, allegedly, concerning a statement made by her relative to an accident in October, 1934, which accident was the basis of the Harris County suit; in permitting defendant to ask plaintiff whether she received $1500 in settlement of her Harris County case; the court's comment relative to defendant's request for permission to show in his bill what plaintiff's answer would have been to said question; and relative to jury misconduct, because, among other things, plaintiff contends the jury discussed the evidence stricken by the court, to the effect that plaintiff received $1500 in settlement of the Harris County case.

The petition in the Harris County case is not in the record. If plaintiff was cross-examined about a statement made by her with reference to the Harris County accident, that statement is not in the record. The record merely shows, in a general way, that in 1934 Mrs. Jones suffered an accidental injury that resulted in a suit for damages in Harris County. That she then claimed to have suffered injuries resembling some of those alleged to have resulted from the automobile collision that is the basis of the instant suit. Defendant's avowed purpose in the introduction of such testimony was to show that plaintiff's condition was caused in part by the prior accident. We think the court did not err in permitting the introduction of testimony which tended to show that her present condition is attributable partly to the prior injury. Fahey v. Clark, 125 Conn. 44, 3 A.2d 313, 120 A.L.R. 520; 13 Tex.Jur. 375; Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 507, 116 S.W.2d 683; Armour & Co. v. Tomlin, Tex.Com.App., 60 S.W.2d 204, 205; St. Louis S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S.W. 1039; Gulf, C. & S. F. Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S.W. 66; Texas Coca-Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 138 S.W.2d 254, writ refused.

Mrs. Jones testified that the injuries sustained in the accident in 1934 were trivial. Thereupon, she was asked by defendant if she had not received $1500 in settlement of her claim for such injuries. She answered that she had. Upon plaintiff's motion, the jury was instructed not to consider said answer. We think reversible error in this connection is not shown.

We do not think reversible error is shown in connection with the allegations of misconduct of the jury in connection with the last (12th) issue, as to what amount of money would compensate Mrs. Jones for the injuries sustained. The record does show that after all other questions had been answered, which answers were not thereafter changed, that some of the jurors thought the answer to said issue should be a substantial sum of money; that one of the jurors stated it was immaterial what the answer to that issue was, since under the preceding answers plaintiff could not recover. We do not think this constitutes reversible error. We do not think that plaintiff has shown, relative to this complaint, that there was an error that probably resulted to her prejudice. Texas R.C.P. 434; American Nat'l Bank v. Sheppard, Tex.Civ.App. 175 S.W.2d 626; Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643. The information given by the juror, if it was such, was manifestly correct. We must attribute to the jury the ability to understand those things which would be understood by ordinary men of good common sense. The jury had found that the acts of Grayson, the driver of the car that collided with the St. John car, constituted the sole cause of the collision; that the collision was the result of an unavoidable accident; that the fact that Williams was driving faster than 60 miles per hour immediately prior to the collision was not a proximate cause of plaintiff's injuries. It occurs to us that persons of ordinary intelligence and understanding, as jurors are presumed to be, would have known that plaintiff could not recover from defendant under such prior findings of fact. As said juror stated to...