Montgomery v. Garza

• Decision Date: 05 January 1927
• Docket Number: (No. 7661.)
• Citation: 290 S.W. 210
• Parties: MONTGOMERY et al. v. GARZA.
• Court: Texas Court of Appeals

290 S.W. 210

MONTGOMERY et al. v. GARZA.

(No. 7661.)

Court of Civil Appeals of Texas. San Antonio.

January 5, 1927.

Appeal from Starr County Court; H. Garza, Jr., Judge.

Action by Andres G. Garza against W. T. Montgomery and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

J. D. Dodson and U. S. Algee, both of San Antonio, for appellants.

Lee Minner, of McAllen, and E. L. Gammage, of Rio Grande City, for appellee.

COBBS, J.

Appellants W. T. Montgomery and L. B. Caruthers were sued by appellee to recover damages done to his automobile truck, alleging:

"That he was a mail carrier under contract with the government of the United States for the transportation of mail from the city of Samfordyce, in Hidalgo county, to the city of Roma, in Starr county, and that by reason of said contract was required to traverse twice daily that portion of the highway between Roma, in Starr county, and that by reason of said contract was required to traverse twice daily that portion of the highway between Roma and Rio Grande City that was covered by a contract for the grubbing and grading entered into between the `defendants' and Starr county on the 1st day of April, 1924."

It was further alleged:

"That appellants disregarded that part of said contract with Starr county in which they were required to keep said road in proper condition for travel while under construction so as to inconvenience said public as little as possible, and `have neglected and failed to keep said road passable, but have permitted same to remain full of chugholes, potholes, and have left steep embankments, and have failed to level same and keep same in a passable condition, or in the condition that same might have been kept, and leaving same in a rough and dangerous condition, and violating their contract with Starr county, and to the great damage and injury of this plaintiff, who was forced and compelled to traverse, and travel over said road.'

"Appellee further alleged that he was compelled to and did use a Ford truck in carrying mail and traveling over said road and highway, and that by reason of the condition that said highway was left and kept in by appellants, said motor truck became damaged and rendered worthless and useless, and that many parts were broken, and that in an attempt to keep said truck in proper condition to operate same he spent $185 for parts and $240 for labor for same, all `by reason of the neglect and failure of these defendants to comply with their contract with Starr county to keep said road in proper passable condition.'

Appellee further alleged that when appellants began work on the road his motor truck was of the reasonable value of $700, and that by reason of driving same over roads in their condition as left by appellants, his truck was practically rendered useless and worthless and damaged in the sum of $500, and prayed for damages in the total sum of $925."

Caruthers answered by demurrer and general denial. Montgomery answered by demurrer and special answer, and additionally alleged and pleaded "that the construction of that part of the road between Rio Grande City and Roma which appellant had undertaken to construct under contract with Starr county was in fact done by J. S. McNiel and E. B. Witmer under contract between appellant Montgomery and said persons whereby they agreed in writing to construct that portion of said road in the capacity of independent contractors, and that they were engaged thereon at all times alleged in appellee's petition, furnishing their own equipment and labor and performing said work in fact by the terms of said contract, and that the acts complained of by appellee were not acts...