Oriental Oil Co. v. Brown

• Decision Date: 21 February 1935
• Docket Number: No. 3123.,3123.
• Citation: 80 S.W.2d 378
• Parties: ORIENTAL OIL CO. v. BROWN et al.
• Court: Texas Court of Appeals

Page 378

80 S.W.2d 378

ORIENTAL OIL CO. v. BROWN et al.

No. 3123.

Court of Civil Appeals of Texas. El Paso.

February 21, 1935.

Rehearing Denied March 14, 1935.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit by Jim Brown against the Oriental Oil Company, wherein the Standard Accident Insurance Company intervened. From a judgment in favor of plaintiff and intervener, defendant appeals.

Affirmed.

H. A. Bateman and Burgess, Chrestman & Brundidge, all of Dallas, for appellant.

Touchstone, Wight, Gormley & Price, of Dallas, for intervener Standard Accident Ins. Co.

White & Yarborough, of Dallas, for appellee Brown.

PELPHREY, Chief Justice.

On or about March 7, 1932, Jim Brown was operating a truck on the Eagle Ford road, in Dallas county, Tex., and going in a westerly direction. H. T. Gumm was operating a truck for appellant and going in the same direction. The truck Brown was operating was behind appellant's truck. Appellant's No. 2 Refinery is located on said road on the south side. On the day in question appellant's driver attempted to turn from the right side of the road into the gate leading to appellant's refinery, and while so doing there was a collision between the two trucks in which Brown claims to have been injured.

On February 28, 1933, Brown filed this suit against appellant, seeking a recovery for such injuries. His petition contains allegations of several acts of negligence on the part of appellant's driver. Appellant demurred generally and specially, and pleaded contributory negligence on the part of Brown.

On April 29, 1933, Standard Accident Insurance Company intervened, alleging that it was subrogated to the rights of Brown to the extent of certain compensation insurance benefits expended by it in his behalf.

In response to special issues the jury found that Brown sustained injuries as a result of the collision; that appellant's driver was not negligent with respect to the speed at which he was driving its truck; that the driver suddenly turned the truck to the left; that such sudden turning was negligence; that it was a proximate cause of Brown's injuries; that the driver did not fail to have the truck under control; that he did not fail to operate the truck on the right-hand side of the highway, considering the direction in which he was and had previously moved; that he failed to keep a proper lookout; that such failure was negligence and a proximate cause of the injuries to Brown; that he failed to apply his brakes at the time and on the occasion in question; that such failure was not negligence; that he changed the course of the truck and failed to see that there was sufficient space for such movement to be made in safety before so doing; that the operation of the truck driven by Brown would be reasonably affected by such changing of course; that appellant's driver failed to give visible or audible signal of his intention to change his course; that such failure was a proximate cause of the injuries; that the accident was not unavoidable; that Brown did not fail to give a warning of his intention to pass appellant's truck; that Brown failed to exercise ordinary care as to the speed at which he was driving; that said failure was not a proximate cause of the collision; that Brown was driving at a rate of speed in excess of 20 miles per hour; that the driving of the truck at such speed proximately caused, or contributed to cause, the injuries to Brown; that Brown failed to slow down the truck he was driving prior to the collision; that such failure was not negligence; that he did not fail to apply his brakes; that he did not fail to have control of the truck; that his failure to stop the truck was not negligence; that he did not fail to keep a proper lookout for the movements of appellant's truck at and immediately prior to the time of the collision; that the Standard Accident Insurance Company expended $2,195.05, incident to the claim of Brown under its obligation as insurance carrier for Sims Oil Company; and that Brown's damages amounted to $7,670.

Judgment in favor of Brown for $5,474.95 and for the Standard Accident Insurance Company for $2,195 was rendered, and this appeal followed.

Opinion.

Appellant's first three propositions are to the effect that, the undisputed evidence showing the collision to have occurred in a "village," as that term is used in article 827a, § 8, Vernon's Ann. P. C., and the jury having found that Brown was operating the truck he was driving at a rate of speed in excess of 20 miles per hour, and that the driving of the truck at such rate of speed proximately caused, or contributed to cause, the injuries sustained by Brown, he was guilty of negligence per se and was precluded by reason thereof from recovering any amount. Appellees counter with the assertions that said article is too vague, indefinite, and general to prescribe a rule of conduct, and that, if it be valid, the testimony being uncertain as to whether the collision occurred within a town or village, appellant should have requested the submission of an issue on such question, and, having so failed, it waived any defense based upon the theory that the driving of Brown's truck at a rate of speed in excess of 20 miles per hour constituted negligence per se.

Appellant admits that the statute in question is too vague and indefinite to be enforceable as a criminal statute, but contends that it is sufficiently certain and definite to furnish a rule of civil conduct, so that its violation constitutes negligence per se.

In support of its position, appellant cites Solan & Billings v. Pasche (Tex. Civ. App.) 153 S. W. 672, 674 (writ refused); San Antonio Public Service Co. v. Murray (Tex. Civ. App.) 59 S.W.(2d) 851; Houston & T. C. Railway Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995; West Texas Coaches v. Madi (Tex. Com. App.) 26 S.W.(2d) 199; 49 Corpus Juris, 631.

Appellees, on the other hand, refer us to Ex parte Slaughter, 92 Tex. Cr. R. 212, 243 S. W. 478, 479, 26 A. L. R. 891; Abbott v. Andrews (Tex. Com. App.) 45 S.W.(2d) 568, 569; International & G. N. Railway Co. v. Mallard (Tex. Com. App.) 277 S. W. 1051, 1052; Sanders v. Lowrimore (Tex. Civ. App.) 73 S.W.(2d) 148.

In Solan & Billings, the court held a statute prohibiting the driving of motor vehicles "at any speed greater than is reasonable and proper, having regard to the traffic and use of the public road, street or driveway by others, or so as to endanger the life or limb of any person thereon," sufficiently definite as a remedial statute imposing a civil duty so as to render its violation negligence per se. Writ of error was refused by the Supreme Court.

In West Texas Coaches v. Madi, Section A of the Commission of Appeals overruled an assignment attacking a statute fixing a punishment for passing a motor or other vehicle, person, or thing on the highway at such a rate of speed as to endanger the life or limb of any person or the safety of any property. Solan & Billings v. Pasche was cited by the court, but the court further held that there were other grounds of negligence established in the case, and that, if there had been error in the submission of the issue, it was harmless and not ground for reversal.

The Court of Criminal Appeals in Ladd v. State, 115 Tex. Cr. R. 355, 27 S.W.(2d) 1098, 1100, held the same statute obnoxious for uncertainty, saying: "It provides no standard by which the operator of any motor vehicle could determine whether the rate of speed at which he was operating his car was lawful or otherwise. The test of danger to the life or limb of any person, or safety of any property, is not one which can be made apparent to the operator of the vehicle by the mere question of possible danger to persons or property."

The definiteness of article 799, Penal Code, was under consideration in Houston & T. C. Railway Co. v. Stevenson. The Court of Civil Appeals, 19 S.W.(2d) 207, held it too uncertain and indefinite to serve as a rule of civil conduct, but the Commission of Appeals, supra, disagreed with such holding, and, after a lengthy discussion of the authorities, decided that the term "adequate brakes kept in good working order" could be easily understood by those who were to be governed by the provisions of the statute.

In San Antonio Public Service Co. v. Murray an ordinance of the city of San Antonio regulating the speed of electric street cars was under consideration. The ordinance was to the effect that no electric street car should be operated at a greater speed than was reasonable and proper, having regard to the traffic and use of the streets by others, or so as to endanger the life or limb of any person thereon, and concluded by fixing a penalty for operating a street car within the circle of one-half mile from the intersection of St. Mary's and College street at more then ten miles per hour. There was an objection to the introduction of the ordinance in evidence. The court held the objection untenable on the ground that, the latter portion being sufficiently definite and admissible, overruling an objection to the whole was not error.

The first case cited by appellees is one by the Court of Criminal Appeals, Ex parte Slaughter, and involved article 820o, Vernon's Ann. Penal Code Supp. 1918, That article prohibited the operation of motor vehicles on the highway "where the territory contiguous thereto is closely built up." The court, in holding it unenforceable, said: "`Closely built up,' seems to us unavoidably open to the objection that it is of such doubtful construction and is so indefinite as to make impossible any standard of...