Patton-Worsham Drug Co. v. Drennon

• Decision Date: 01 December 1909
• Citation: 123 S.W. 705
• Court: Texas Court of Appeals
• Parties: PATTON-WORSHAM DRUG CO. v. DRENNON.<SMALL><SUP>†</SUP></SMALL>

Page 705

123 S.W. 705

PATTON-WORSHAM DRUG CO. v. DRENNON.^†

Court of Civil Appeals of Texas.

December 1, 1909.

Rehearing Denied January 5, 1910.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by A. C. Drennon against the Patton-Worsham Drug Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Geo. B. Taliaferro, H. E. Jackson, and Etheridge & McCormick, for plaintiff in error. C. L. McGill and C. L. Bass, for defendant in error.

NEILL, J.

This suit was brought by Drennon against the Patton-Worsham Drug Company to recover damages for personal injuries inflicted on his wife by said company.

After alleging that on March 13, 1906, the relation of principal and agent or master and servant existed between the defendant and one J. R. Lowry, and that on said day, while, as such agent, Lowry was in and about his master's business and within the scope of his agency, the plaintiff's petition proceeds as follows: "Second. (a) That heretofore on or about the 13th day of March, 1906, plaintiff's wife was driving a horse to a buggy along a street over which many horses were driven in the city of San Antonio, Bexar county, Tex., and the horse came within view of a team of horses which said Lowry was driving to a wagon. (b) That the team of horses were decorated with cloths upon which were various letters in bright colors, and such team of horses so decorated were well calculated to frighten horses driven by persons upon such streets, and which was known, and ought to have been known, by said Lowry in the exercise of ordinary care, and the team so decorated caused the horse to be frightened and to upset the buggy, and plaintiff's wife was thrown to the earth and thereby received injuries." Then follow allegations as to the character, nature, and extent of her injuries. "Fifth. That said Lowry knew, and ought to have known, the facts set out in subparagraph `a' of paragraph second; and by reason of same foresaw, and ought to have foreseen, that there was a possibility of loss being caused to some one by driving such a team on such a street; and by reason of such foresight he ought not to have done so, which he knew and ought to have known." The petition then averred that such conduct was the proximate cause of plaintiff's damages, and closes with a prayer for damages against defendant for the sum of $20,000. The defendant answered with a general demurrer, and what is termed by its counsel in their brief a special exception, a general denial, and a special plea denying that Lowry was its servant or agent, but that, on the contrary, he was an independent contractor. The demurrer and exception to plaintiff's petition were overruled, and the trial of the case resulted in a verdict and judgment for plaintiff in the sum of $1,000.

Conclusions of Fact.

The evidence is reasonably sufficient to show that the defendant, acting through and by its agent and servant, J. R. Lowry, was guilty of negligence in the manner and form alleged by plaintiff, and that by reason of such negligence his wife was thrown from her buggy and badly hurt, whereby the plaintiff was damaged in the amount assessed by the jury.

Conclusions of Law.

1. The proposition under the first assignment of error, which complains of the court's overruling defendant's general demurrer, is as follows: "In the absence of statutory inhibition, the mere appearance of a caparisoned team upon the streets of a city does not in law constitute negligence, although some horses may take fright thereat, and a petition which seeks a recovery of damages for personal injuries, based solely upon an averment that such injuries were caused by the appearance upon the streets of a city of a caparisoned team, `calculated to frighten horses driven by persons upon such streets,' presents no cause of action and is vulnerable to general demurrer."

Rule 17 (67 S. W. xxi) for the district and county courts provides that, "in passing upon a general exception, every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency." See: Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185; Whaley v. Thompson, 41 Tex. Civ. App. 405, 93 S. W. 212; Internat. Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 94; Insurance Co. v. Hargus, 99 S. W. 581; Teleg. Co. v. Levy, 102 S. W. 135. The rule is well-nigh universal that, in an action for negligence, the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence. 14 Ency. 333; Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658; Street Ry. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752. Nor is it necessary to allege that the facts pleaded constitute negligence if the conclusion of negligence can be drawn from them. St. Ry. Co. v. Cailloutte, 79 Tex. 341, 15 S. W. 390; Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061; Rowland v. Murphy, supra. It will be noticed, from our statement of the pleadings, that there is no specific allegation of negligence in plaintiff's petition. The question then is: Can the conclusion of negligence be deduced from the facts pleaded?

The rule is that any individual who does anything to frighten a traveler's horse is liable for any damage which may result from the fright of the horse, either to the owner of the horse, or to any person whom the frightened horse may injure. Shear. & Redf. Neg. (5th Ed.) § 355; Jones v. Snow, 56 Minn. 214, 57 N. W. 478; Ind. & G. Rapid Transit Co. v. Haines, 33 Ind. App. 63, 69 N. E. 187. In the case just cited a horse was frightened by a decorated vehicle, which was being driven along a street, ran away, and injured the property of another. The court, in considering the question of negligence, in an action for damages, brought by the owner of the property damaged against the owner of the decorated vehicle, says: "It appears from the evidence that the defendant was using his wagon as a medium for advertising his business of selling bicycles, and to this end the wagon had upon it several nickel-plated bicycles, with flags also upon the wagon, flying from one side to the other. The evidence clearly shows that the wagon was so arranged and decorated as to readily frighten horses of ordinary gentleness, and that the display was not such as was really necessary for carrying on defendant's business, except in the way of advertising it. There did not appear to be any carelessness or negligence on the part of the plaintiff or Mrs. Griswold, and they were lawfully in the street. The defendant, in giving his testimony on the trial, stated that he did not know that it was hardly imperative to decorate his wagon in the manner proven, but that he carried flags, and so decorated his wagon, to let people know that his people were true Americans. However admirable such an unusual display of loyalty and patriotism might be if exhibited on a Fourth of July, it is of rather questionable practice to let it ooze out and bubble over on other days, in a great thoroughfare of a populous city, to the extent proven in this case, endangering not only the property of other citizens, but putting their lives in peril." In the other case, the injury was caused by reason of a horse becoming frightened at a sign or banner on the front of the car which he met on the highway, which was not necessary to the operation of the car. The court deemed the question as to whether the sign or banner was necessary to the operation of the car the crucial test of defendant's negligence, and, upon the jury's finding in the negative upon the issue, affirmed the judgment.

The rule stated and illustrated by these cases is a corollary to the principle that a highway is designed, primarily, for the use of travelers on foot or otherwise, and that whenever it is used for a different purpose, if such use is calculated, or is liable, to injure another who is lawfully using it for the purpose it was dedicated and designed for, or any other purpose, in the lawful pursuit of his business, the person diverting it to such other use is guilty of negligence and liable for such injuries as are proximately caused therefrom. Though streets are sometimes used for purposes of advertising, they were never intended or designed for such purposes, and, when so used by any one, he is, if not absolutely liable for any injury that may be caused by such uses, at least liable for any damage that might be reasonably anticipated to flow from it. The public can no more be deprived of its right to the free and unincumbered use of its thoroughfares by the flaunting of banners, the flapping of gaudy caparisons, the display of pyrotechnics, the blare of trumpets, "the spirit-stirring drum, the ear-piercing fife and all quality" that gladdens the eye, quickens the step, and thrills the soul of the small boy, than the people can be of...