Mann v. Cook

• Decision Date: 30 November 1929
• Docket Number: (No. 12271.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Mann v. Cook, 23 S.W.2d 860 (Tex. App. 1929)
• Parties: MANN et ux. v. COOK.
• Court: Texas Court of Appeals

Page 860

23 S.W.2d 860

MANN et ux. v. COOK.

(No. 12271.)^*

Court of Civil Appeals of Texas. Fort Worth.

November 30, 1929.

Rehearing Denied January 4, 1930.

Error from District Court, Wichita County; P. A. Martin, Judge.

Action by C. M. Mann and wife against M. M. Cook. Judgment for defendant, and plaintiffs bring error. Reversed and rendered.

See, also, 11 S.W.(2d) 572.

W. P. Smith and C. K. Walsh, both of Wichita Falls, for plaintiffs in error.

Cox & Fulton, of Wichita Falls, for defendant in error.

CONNER, C. J.

On February 22, 1929, the plaintiffs in error C. M. Mann and wife, Pearl Mann, instituted this suit against M. M. Cook, defendant in error, to recover damages resulting from an automobile collision. They alleged, in substance, that on the 5th day of October, 1927, while the plaintiffs and their two sons were in their Cadillac touring car driving south on Grace street in Wichita Falls, Wichita county, Tex., at about 5 o'clock p. m., plaintiffs were approaching Ninth street of said city at a speed of about 7 or 8 miles per hour, and had reached the intersection of Ninth and Grace streets at a point about the center of Ninth street when a Ford automobile owned by the Hamilton-Martin Investment Company, a corporation, which was at the time being driven by Gordon Cook, a minor son of the defendant M. M. Cook, coming west on Ninth street, collided with the plaintiff's car, striking it about the center; and as a result of said collision, the plaintiff's car was completely wrecked so that it is now worthless; and also that, as a result of said collision, the plaintiff Pearl Mann was thrown from said Cadillac car against the pavement with great force, as a result of which she received permanent serious injuries as specified in the petition.

It was further alleged that Gordon Cook, at the time and just prior thereto "was negligently and unlawfully driving said Ford automobile down the middle of Ninth Street and at said time was driving same at a negligent, wreckless, excessive and unlawful rate of speed, namely about forty miles per hour; that said Gordon Cook at said time was negligently and unlawfully failing to observe the street ahead and look for other people whom he knew or should have known might be using Ninth Street at said intersection; that said Gordon Cook was negligent in not driving said Ford automobile at a rate of speed as he approached said crossing so he could have stopped same before hitting plaintiffs' car and in failing to stop; that said Gordon Cook was negligent in not seeing plaintiffs' car in time to stop; that said Gordon Cook was negligent in not driving to the North Side of Ninth Street and passing behind plaintiffs' car, which he could and should have done; that said Gordon Cook was negligent in not applying his brakes and in not making any attempt to stop his car before it struck this plaintiffs' as alleged; that said Gordon Cook was negligent in manner and the way which he drove said car at the time of said collision and just prior thereto.

"Plaintiffs further pleading allege that the said Gordon Cook was negligent (a) in failing to leave the right of way to the plaintiffs herein and in violation of Section 36 of the Ordinance 958 of the City of Wichita Falls, and of Article 801 of the Penal Code (1925 Texas Statutes) which said section 36 of the Ordinance 958 provides that `every driver of a vehicle approaching the intersection of a street shall grant the right of way at such intersection to any vehicle approaching from the right and where two vehicles approach the same intersection at the same time the driver of the vehicle on the left shall decrease the speed to ten miles per hour and have his car under control before crossing such intersection, and it shall be the duty to yield to the vehicle on the right.' And Article 801 of the Texas Penal Code provides `except where controlled by such ordinances or regulations enacted by local authorities, as are permitted under the law, the operator of a vehicle approaching an intersection on the public highway shall yield the right-of-way to a vehicle approaching such intersection from the right of such first named vehicle.'

"(b) And that said Gordon Cook was negligent in driving said Ford automobile at a rate of speed in excess of twenty-miles per hour which was in violation of Article 789 of the Texas Penal Code, which provides that no person shall operate a motor or other vehicle within the corporate limits of an incorporated city or town at any greater rate of speed than twenty miles an hour, and the plaintiffs hereby specially plead said ordinance and statute above mentioned, and that such negligence was the direct and approximate result of the injury and damage herein alleged."

The plaintiffs further alleged that the defendant M. M. Cook, father of said Gordon Cook, was at the time of the collision and for some time prior thereto, an actual employee of the Hamilton-Martin Investment Company, and that the car being driven at the time by Gordon Cook had been furnished to its employee M. M. Cook to be used by him in the regular discharge of his duties as such employee; that said M. M. Cook was permitted by said company to keep said car in his possession at all times and to keep it at his home both day and night; that M. M. Cook was employed by the month and had no regular hours to begin and quit work, but was allowed and permitted to fix his own hours and work and to do said work at any time of the day or night; that at the time of said collision, and for some time prior thereto, he had possession and was exercising full control of said Ford car and used the same, not only for his work, but also as a family car, and the members of his family, including his son Gordon, were permitted to use said car as a family car when it was not being used by said defendant in connection with his employment; that on the occasion in question the car was being used by Gordon Cook as a family car with the knowledge and consent of said M. M. Cook.

It was alleged the injuries of which the plaintiffs complain was the proximate result of the specific negligence of Gordon Cook, and the prayer was for recovery of damages aggregating $15,000.

The defendant M. M. Cook answered by a general and certain special demurrers, a general and special denial, and specially to the effect that the car in question had simply been placed in his back yard by another employee of the corporation named and had never been used by himself or for the pleasure of his family; that he owned his own car which he furnished to his family and for himself and used it at all times for the benefit of himself and family and never used or permitted his family to use the Ford car for the use and pleasure of the family in any way; that the only time said car was used after having been placed in defendant's back yard was on "perhaps two or three occasions prior to the date of the accident complained of, when it was used for business purposes strictly and when this defendant and his wife sent the son Gordon Cook to the ice plant for some ice and once to take a bundle of clothes to the laundry"; that if said car was ever used by any member of the family, it was without the knowledge or consent of the defendant, his positive orders being that said car was not to be used for any purpose by his family.

The defendant further specially alleged that at the time of the accident he was not at home, and that he knew nothing whatever of the car being used by his son, Gordon, until after the accident; that his son Gordon was over 17 years of age, weighed about 150 pounds, and was an expert driver of automobiles, and that his said son, without the knowledge or consent of defendant on the afternoon of the day of the accident, together with some of his boy friends, took said car without asking for it or for the use of same, and with said boys drove to Bellevue park in the city of Wichita Falls, for the purpose of playing tennis, and for his own pleasure and amusement. The defendant further specifically pleaded that the plaintiffs were guilty of contributory negligence in violating the rules of traffic in the city, especially an ordinance with reference to making a left-hand turn, and also in violating article 801, subds. (G) and (K) of the Penal Code; that the injuries complained of were the result of their own carelessness and negligence in driving into the street intersection of Grace and Ninth streets and making a left-hand turn without any notice or warning thereof to approaching cars; that the custom of the city was that traffic on Ninth street running east and west has the right of way on all cross streets running north and south, and that all stop signs are placed on said cross streets; that Ninth street is recognized as being a through driveway without any stop sign, by reason of which Gordon Cook had a right to presume that a car coming into Ninth street from Grace avenue would either turn to the right going west on Ninth street, keeping close to the curb, or the driver would keep his car under such control that he would permit other cars to pass before undertaking to drive into the intersection; that the plaintiffs failed to observe the custom and rules stated and drove into the intersection directly in front of the car driven by Gordon Cook, turning to the left immediately in front of said car, which caused the collision and damage, if any, without fault or negligence on the part of Gordon Cook. Contributory negligence in other respects, such as failure to properly handle the car, to exercise proper care and caution for their own protection, and failure to give a signal of their intention on entering the intersection, and in failing to observe the approach of the car driven by Gordon Cook, and in failing to stop after having actually observed its approach, was also pleaded.

The trial was before the court without a jury and judgment rendered in favor of the defendant upon the...