Lang Floral & Nursery Co. v. Sheridan

• Decision Date: 06 May 1922
• Docket Number: (No. 8650.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 245 S.W. 467
• Parties: LANG FLORAL & NURSERY CO. v. SHERIDAN.
• Court: Texas Court of Appeals

245 S.W. 467

LANG FLORAL & NURSERY CO. v. SHERIDAN.

(No. 8650.)^*

Court of Civil Appeals of Texas. Dallas.

May 6, 1922.

On Motion for Rehearing, June 17, 1922.

On Second Motion for Rehearing, November 4, 1922.

Further Rehearing Denied December 2, 1922.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by Pat Sheridan against the Lang Floral & Nursery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Crane & Crane, of Dallas, for appellant.

Currie McCutcheon, of Dallas, for appellee.

HAMILTON, J.

This was an action for the recovery of damages for personal injuries alleged to have been inflicted by reason of negligence.

On July 23, 1919, appellee was riding on horseback in an easterly direction on a public road, when an automobile belonging to appellant and at the time driven by T. G. Browning, appellant's employe, struck the horse from the rear. When the automobile struck the horse he fell and pinned appellee's right leg underneath his body. The road was built of concrete, but along the side of it ran a gravel pathway on which appellee was riding at the time he was struck by the automobile driven, as aforesaid, by Browning, appellant's employé. The portion of the road where the accident occurred was not used for automobile travel, such vehicles being operated upon the concrete portion of the road, and it seems that either the inexperience or the carelessness of Browning accounts for the automobile running off the concrete portion of the road and striking the horse. The accident resulted in the following injuries to appellee: A gash was cut in his right knee about four inches long, the cut extending to the bone and severing the ligaments, muscles, tissues, nerves, arteries, etc., in that portion of appellee's leg; the joint was bruised; the great toe of his right foot was seriously bruised and injured; he was also slightly injured in the shoulders and other parts of his body. As a result of the injuries appellee suffered great pain for a period of about five weeks, and it was necessary that the wounds be dressed and treated daily during this period.

Appellee was confined to his bed about five weeks as a result of his injuries. After this he went on crutches for about the same length of time. After discarding the crutches he used a cane for two or three weeks. Occasionally he suffered some pain in the crippled leg and knee until the date of the trial, which was January 11, 1921. According to the testimony of the physician who attended him, which is not controverted, he will have more or less pain in the joint of his knee at intervals during the remainder of his life, especially when he subjects it to unusual exertion. Before the injuries, appellee was physically sound and robust.

Appellee was a laborer at the time of the accident, and was engaged as a feeder and milker at a dairy. He was receiving a salary of about $100 per month for his labor at the time of the accident. The record does not definitely disclose how long his disablement incapacitated him to work, but we gather from the evidence as a whole that he began his labors again about three months after he received his injuries. There is no proof as to how much he received for his work at the dairy after he resumed work. In the fall of 1919 he removed to Hood county and purchased a farm, which he had been living upon and cultivating from the date of purchase until the time of the trial. There he did general ordinary farm work, but he testified that he could not work continuously through an entire day at hard farm labor because of the pain it caused him to suffer in his injured leg and knee.

The petition voluminously alleges two separate theories of liability based upon negligence. The first is that the injuries resulted from the negligence of Browning while he was acting as the agent and employé of appellant, operating a motor vehicle in the course of his employment or within the general scope of appellant's business. The second is that appellant, through its vice principal and acting head, knowingly permitted Browning, an employé, to operate a motor vehicle upon the public streets and highways with knowledge that Browning was an incompetent and unskillful driver, and that, the accident having resulted from Browning's incompetence and lack of skill, it was attributable to appellant's negligence in permitting him to operate the vehicle under such circumstances.

The petition was answered by general demurrer and general denial. At the conclusion of the development of the case it was submitted to a jury upon special issues embodying every material question contained in the evidence.

The answers of the jury being favorable to appellee and the amount of damages awarded being in the sum of $3,000, judgment was entered accordingly.

The case is presented to us upon numerous propositions under assignments of error which complain principally of admission of, or failure, upon appellant's motion after its admission, to exclude, testimony attacked as being objectionable, and in submitting various issues and also refusing to give certain requested special instructions.

In the first place, complaint is made against the action of the court in refusing to instruct the jury at appellant's request to disregard certain portions of the testimony of three witnesses who testified in appellee's behalf. The objectionable portion of the testimony which appellant requested the court to exclude from the jury embodied certain purported statements of T. G. Browning, the driver of the automobile, made soon after the accident, to the effect that he was returning from making a delivery. It is insisted that the testimony was hearsay and was not a part of the res gestæ; that the purported statements were inadmissible as proof that the driver was appellant's agent because they were merely the declarations af an alleged agent, himself, which could not constitute competent evidence of agency; that the testimony was inadmissible because, conceding that Browning made such statements, his manifest purpose was to exculpate himself and put the blame of the accident on appellant, and that proof of the statement was incompetent because, even if such statements were made, they were not evidence of appellant's liability for the reason that the evidence failed to show any connection between him and appellant rendering his admissions binding upon appellant.

The statements attributed to Browning by the witnesses who testified to them appear to have been made some time after the accident had occurred and in response to inquiries made by the witnesses who had come upon the scene of the accident. The fact that some time may have elapsed between the actual occurrence and the use of the language, the narrative of which is objected to, does not necessarily render it inadmissible as res gestæ. Incidents of an act may be separated from the act itself by the lapse of a more or less appreciable space of time and yet constitute res gestæ. It often has been held that declarations, in order to constitute parts of the res gestæ, need not be exactly coincident in point of time with the principal fact to which they are incidental. If they spring out of the occurrence to which they relate and are voluntary and spontaneous and made at a time not so far from the happening to which they relate as to preclude the idea of their being deliberate and designed, then they may be regarded as res gestæ, and this is true, notwithstanding such statements may be in response to questions. Under the evidence offered in appellee's behalf the statements testified to were made as soon as the witnesses who gave the testimony could come from a house in front of which the accident seems to have occurred, the house being situated upon the roadside, and there is nothing revealed to indicate they were not res gestæ. However we do not think the testimony, taken alone, was admissible as proof that Browning was appellant's agent, engaged in the discharge of any duty of his employment at the time of the accident. Furthermore, if the statements are to be considered merely in the nature of admissions by Browning, then they could not be taken as admissions binding upon appellant.

E. A. Loupot, a witness for appellee and who was appellee's employer at the time of the accident, testified that Browning brought appellee back to the dairy owned by Loupot and at which appellee was employed. He testified that this was in the night following the accident, which occurred in the early evening or afternoon, and that in a conversation there with Browning the latter stated, in answer to a question, that he was on duty at the time he injured the appellee, he having made a call in West Dallas. Appellant objected to this testimony on the ground that it was hearsay and incompetent to prove authority, or the scope of authority. The admission of the evidence over appellant's objection is complained of by appellant.

This conversation, granting that it occurred, and that the statement was made, in point of time, evidently was several hours after the accident itself. Appellee had been taken to the hospital in Dallas and his wounds treated by a physician, and had been conveyed by Browning back to his place of employment. Such being true, we think it manifest that the testimony was not admissible as res gestæ.

Appellee contends that the testimony of the three witnesses who testified as to the substance of statements made by Browning after the accident and the testimony of Loupot as to the statement made to him by Browning was admissible to impeach Browning who, in his own testimony, denied making any of the statements attributed to him.

We do not think any of this evidence was admissible for impeachment purposes because whatever statements Browning made at the time of the accident were immaterial as a sole basis for fixing liability against appellant. Statements of one admitting his agency are in themselves...