Mrs. Baird's Bakery v. Davis

• Decision Date: 15 October 1932
• Docket Number: No. 12717.,12717.
• Parties: MRS. BAIRD'S BAKERY v. DAVIS.
• Court: Texas Court of Appeals

54 S.W.2d 1031

MRS. BAIRD'S BAKERY v. DAVIS.

No. 12717.

Court of Civil Appeals of Texas. Fort Worth.

October 15, 1932.

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by N. G. Davis against Mrs. Baird's Bakery. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Bryan, Stone, Wade & Agerton and O. W. Fannin, all of Fort Worth, and C. T. Gettys, of Decatur, for appellant.

Taylor, Muse & Taylor, of Wichita Falls, and Burch & Woodruff, of Decatur, for appellee.

CONNER, C. J.

This suit was instituted by N. G. Davis against Mrs. Baird's Bakery, a corporation of which Mrs. Baird was president. The plaintiff alleged that about the 14th day of September, 1928, he was driving from Bowie to Fort Worth in a Studebaker automobile owned by him at the time and accompanied by his daughter, Lura Dean Davis; that, while driving upon the public highway, he came to a narrow or one-way bridge, and, after having driven thereon, he met a Graham truck belonging to the Baird Bakery being driven by one V. M. Pope, the agent, servant, or employee of the defendant; that after having advanced at least one-half or two-thirds of the way across the bridge, said Pope drove thereon at a rate of speed of 15 miles an hour, with full knowledge of the fact that plaintiff was advancing and knowing that a collision would occur, and which in fact did occur by reason of the negligence of said Pope in driving the truck onto the bridge while plaintiff was advancing thereon. Plaintiff alleged that he, in the exercise of due care and when he saw the driver of the truck who was driving onto the bridge, began immediately to apply the brakes on his car to avoid the collision, but was unable to do so.

As a result of the collision alleged, it was charged that the car was practically destroyed and his daughter injured in the particulars set forth in the petition; and he prayed for damages in the total sum of $1,504.

The case was submitted to a jury on special issues. Issue No. 1 is in the following terms: "Was the defendant negligent in driving onto the bridge in question at the time alleged in plaintiff's petition, if he did drive onto said bridge? Answer yes or no."

To this issue the jury answered "Yes."

Other findings are to the effect that such negligence was the proximate cause of plaintiff's damages. The findings of damages were in specific amounts to the plaintiff's car and for loss of time in its use; for transportation of his daughter to Harris' Hospital; for the amount paid Dr. Clark of Bowie for treatment of his daughter; and the amount paid by the plaintiff to Harris' Hospital for medical attention, hospital bills, nurse's hire, etc., aggregating, as shown in the court's judgment, the total sum of $314.50. From this judgment the defendant has duly prosecuted this appeal.

Error is assigned to the refusal of the court to give a peremptory instruction. Under this assignment it is insisted that there was no proof that the truck belonged to the defendant or that the driver was the agent or employee of defendant or at the time was engaged in the discharge of his duties as such agent. The testimony relating to this issue was that given by plaintiff. He testified that: "On the front of the truck, on the front of the cab I guess you would call it, was `Mrs. Baird's Bakery'. That was all that was on the truck."

At another place in his testimony he stated that the sign on the truck was "Mrs. Baird's." This is all the testimony relating to the subject.

A familiar rule of evidence generally speaking is that the failure of a party to an action to testify raises a strong presumption against him in many cases, and this is especially true where he...