Miller & Miller Motor Freight Lines v. Hunt

• Decision Date: 25 June 1951
• Docket Number: No. 6159,6159
• Citation: 242 S.W.2d 919
• Parties: MILLER & MILLER MOTOR FREIGHT LINES v. HUNT.
• Court: Texas Court of Appeals

Page 919

242 S.W.2d 919

MILLER & MILLER MOTOR FREIGHT LINES v. HUNT.

No. 6159.

Court of Civil Appeals of Texas, Amarillo.

June 25, 1951.

Rehearing Denied Sept. 10, 1951.

Klett, Bean, Evans & Justice, Lubbock, for appellant.

Ratliff, Conner & Walker, Spur, for appellee.

MARTIN, Justice.

Appellee, Mrs. Christeen Hunt, sued appellant, Miller & Miller Motor Freight Lines, a partnership, in Dickens County, Texas, and alleged in her petition that the appellant's agent so negligently operated a company truck as to cause the death of Margaret Ann Hunt, a minor child of appellee, in Dickens County, Texas. Appellant filed a plea of privilege to be sued in Wichita County, Texas, the county of its residence. Appellee controverted this plea and sought to hold venue in Dickens County under Exception 9 of Article 1995, Vernon's Annotated Civil Statutes. The trial court overruled appellant's plea of privilege and it perfected an appeal.

Thirteen grounds of negligence are alleged in appellee's petition. As to the issue of venue, a number of appellee's allegations of negligence raise no issue of trespass under the Supreme Court's ruling as to active negligence as found in Barron v. James, 145 Tex. 283, 198 S.W.2d 256, 260, wherein specific allegations of negligence are quoted as follows: 'failed to have the bus under proper control * * * failed to keep a proper lookout * * * failure of the driver to sound his horn * * * negligent in not stopping the bus before it came in contact * * * driver was guilty of negligence in not driving sufficiently to his left to avoid coming in contact * * * driver failed to reduce the speed of the bus.' The Supreme Court, after setting forth the above issues, like allegations being found in appellee's petition herein, ruled: 'In none of the answers to the issues was there a finding of active negligence. * * * None of these is a finding of trespass.' (Citing many cases).

The issue is thus narrowed solely to two allegations of negligence found in appellee's petition as follows: (1) That the driver turned his truck off the paving to the right to park before passing Margaret Ann Hunt and ran over her. (2) That a dolly wheel crank on the truck extended beyond the truck bed and caught the dress of Margaret Ann and she was thereby thrown under the truck on the highway and run over. The issue here is whether there is any evidence of probative force to sustain one of the allegations so plead as either of the allegations, if established by evidence, would constitute active negligence and a trespass in Dickens County, Texas.

Appellant and appellee further somewhat narrowed the issue to an inquiry as to the extent inferences or presumptions may legally be drawn from proven facts in the cause. The respective points of view of the parties are aptly illustrated by Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547, as cited by appellant and by Benoit v. Wilson, Tex.Sup., 239 S.W.2d 792, as cited by appellee.

The general rules under which venue must be established are too well known to require citation of authority. The applicable rules as to the extent presumptions may be drawn from the proven facts are briefly as follows: 32 C.J.S., Evidence, § 1044, page 1129: 'A verdict or finding may be based on reasonable inferences fairly drawn from the facts in evidence, and a material fact need not be proved by direct evidence; it is sufficient if there is evidence from which the fact can properly be inferred. The triers of fact may draw all reasonable and legitimate inferences and deductions from the evidence adduced before them; indeed, it is their duty to make, and give consideration to, all inferences and deductions which may properly be drawn.'

31 C.J.S., Evidence, § 116, page 727: 'An inference of fact should not be drawn from premises which are uncertain, but the facts on which an inference may legitimately rest must, it is said, be established by direct evidence as if they were the very facts in issue. It follows that one presumption cannot be based on another presumption.'

Texas & P. Ry. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68; Williams v. Rearick, Tex.Civ.App., 218 S.W.2d 225; Houston & North Texas Motor Freight Lines, Inc. v. Hollingsworth, Tex.Civ.App., 213 S.W.2d 747; Texas & N. O. R. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378.

In the light of all applicable rules, we shall examine the evidence in this cause. This evidence is not too involved and there is no dispute as to the actual facts proven. We must of necessity quote the essential undisputed proven facts, which are as follows: The appellant's truck driver stopped at a stop sign on two intersecting highways in Dickens, Texas. The driver was proceeding East on the South side of the highway and was stopping in Dickens for coffee. The sheriff testified that from a point just South of the stop sign to the place on the highway where the center of the little girl's body lay was 87 1/2 feet. Margaret Ann Hunt and her sister, Carla Tom Hunt, were standing side by side south of, and just off of, the paved portion of the highway. The truck was 8 feet wide and the van body did not extend beyond the tires. The truck's speed was estimated at from 5 to 10 miles per hour. A truck tractor pulled the van and the front of the van rested on the back of the truck tractor and the back of the van rested on 8 rear wheels, four to each side in dual sets. A dolly wheel crank near the front of the van was found hanging loose under the van bed after the truck was parked south of the highway. When this crank is engaged so that the dolly wheels could be raised or lowered the handle of the crank sticks outwardly from the bed several inches. The truck tires did not leave the paved portion of the highway until 5 1/2 feet beyond the spot on the paving where the center of Margaret Ann's body was located. The child's body was entirely on the paving with the head pointing northeast toward the center of the pavement and the feet southwest and the feet were about 6 inches from the south edge of the pavement. Carla Tom, who was standing beside Margaret Ann at the time, was 6 years of age and a bright, intelligent girl in the first grade in school. Carla Tom, who was generally known as Sandy, immediately after the occurrence, told her brother, Margaret Ann is killed or something like that. Carla Tom also claimed to have seen the accident. She was not offered as a witness. The testimony established that there was an L shaped tear on the left side of Margaret Ann's dress about 3 inches long. Two red buttons from this dress, and also two or three soda straws, were found at the spot on the highway where the body lay. The buttons had been pulled off, or popped off, the back of the dress above the waistline. The sheriff and highway patrolman testified that the truck wheels had run on the right side of Margaret Ann's right leg and up to the hip. The undertaker who examined the body testified that on the left side there was a place two or three inches long that he had to dry the tissue and sew it up. The undertaker further testified that what he took to be tire marks were on the left side of the body and the other one had been bruised or cut or something. He was of the opinion that the truck wheels ran over the body over the pelvic region at an angle and slipped off. No cloth, blood or skin tissue were found on the dolly wheel crank.

From the above facts, the appellee drew the theory that Margaret Ann was either run over by the truck turning off the pavement to the right to park or that she was caught on the left side of her dress by the dolly wheel crank and thereby thrown under the van and under the back wheels. Further, appellee's theory is that the dolly wheel crank extended beyond the truck body and tore the L shaped place in Margaret Ann's dress and thereby popped the two red buttons off the back of her dress. The appellant, although not required to prove any facts or advance any theory in the venue hearing, drew the theory under the facts that Margaret Ann tried to run under the high truck van body and was run over. To these theories advanced by the appellee and by the appellant might be added still another theory that Margaret Ann was standing beside her sister at the edge of the pavement and, as children are wont to do, leaned over and placed her hand on the slowly moving truck and that in leaning over and putting her hand on the truck as it moved by, her hand came in contact with the outer drive wheel tire on the truck which threw her off balance and she fell on the paving under the truck. But it is to be observed that these are all merely theories and as such are not to be confused with presumptions or inferences that may legally be drawn only from proven facts.

In view of the uncontroverted evidence in the cause that the truck was on the paved portion of the highway and that the wheels thereof did not leave the paved portion of the highway until they were past the place where the child's body was found, there is no evidence in the record to support the proposition that the truck turned off the paving to the right and ran over Margaret Ann. All the direct testimony submitted in the cause establishes that Margaret Ann was run over while she was on the paving. The direct evidence on this issue dispenses with the necessity of drawing any presumptions or inferences. But even if any inferences or presumptions were required to be drawn on the proven facts, the above finding is the only reasonable presumption or inference to be had in the cause under the proven facts as to this issue.

Under the authorities, the facts as proven do not establish that the truck turned off the paving and ran over the child thereby establishing a trespass in Dickens County, Texas. Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207; Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 71 S.Ct....