Peveto v. Smith, 2273-7400.

• Decision Date: 29 November 1939
• Docket Number: No. 2273-7400.,2273-7400.
• Citation: 133 S.W.2d 572
• Parties: PEVETO et al. v. SMITH.
• Court: Texas Supreme Court

Page 572

133 S.W.2d 572

PEVETO et al. v. SMITH.

No. 2273-7400.

Commission of Appeals of Texas, Section A.

November 29, 1939.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. Iva Smith against Arlas Peveto and H. B. Jackson for personal injuries sustained by Olen Smith which resulted in his death. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 113 S.W.2d 216, and the defendants bring error.

Judgment as against defendant H. B. Jackson and judgment of affirmance reversed and judgment rendered for Jackson and judgment against Arlas Peveto affirmed.

Wm. O. Bowers, Jr., of Beaumont, for plaintiffs in error.

John H. Benckenstein and Jack M. Moore, both of Beaumont, for defendant in error.

HARVEY, Commissioner.

This suit was brought by the defendant in error, Mrs. Iva Smith, the mother of Olen Smith, to recover damages of the plaintiffs in error, Arlas Peveto and H. B. Jackson, for personal injuries sustained by Olen on April 22, 1936, which resulted in his death five days later. It was alleged by Mrs. Smith, in her petition, that Peveto and Jackson were partners, composing the firm of "Peveto Mercantile Company" and that the injuries sustained by Olen proximately resulted from the negligence of Peveto in operating a motor truck, in furtherance of the business of said firm, while he was under the influence of intoxicating liquor. The case was tried before a jury on special issues, and, upon their answers to same, the trial court rendered judgment in favor of Mrs. Smith against Peveto and Jackson for damages in the sum of $4,500. From said judgment, Peveto and Jackson prosecuted an appeal to the Court of Civil Appeals at Beaumont, and that court affirmed the judgment of the trial court. 113 S.W.2d 216. Peveto and Jackson applied for the writ of error and the application was granted.

In the plaintiff's petition the following allegations occur, among various others not presently material:

"That on or about April 22, 1936, at or about the hour of six thirty o'clock P. M., the said Charles Olen Smith, now deceased, left his work at Pennsylvania Shipyards, Inc., in Beaumont, Texas, and started to his home at Vidor in Orange County, Texas, and drove his car, a certain Dodge, 1927 Model Sedan, Texas License No. 647-369, on and over the United States Highway No. 90, which runs from Beaumont to Vidor, Texas, at or about said time was driving his car on and along said public highway and was driving same in a southeasterly direction over the viaduct and was approaching the bridge that crosses the Neches River, when suddenly and without previous notice his engine stopped running and he pulled over to the fartherest edge of said viaduct on his right hand side. At said time and place it was not yet dark but, nevertheless, he turned his lights on and the lights on his said car, both front and rear, were burning. The said Charles Olen Smith got out of his car, raised the hood on the left hand side and began to inquire into the trouble of his engine and was examining the vacuum tank on his said car when suddenly, without any notice or warning of any kind whatsoever, the defendant, Arlas Peveto, driving a new Ford V8 Pickup Truck, License No. 122-CMO91, loaded with sacks of meal or some such commodity, drove said truck with great force and violence into the rear of said Dodge Sedan, and the said Charles Olen Smith was thrown against said Dodge Sedan and down on said highway and was brutally, severely and fatally injured, and suffered thereby the following injuries, which resulted in his death, towit: Fracture of upper jaw, loosening all the upper teeth, a wound on the roof of his mouth, punctured like, both eyes bruised and almost closed, a fracture of the lower jaw on the right side, which caused quite a deformity, injury to the right thigh near the right groin, and internal injuries of the abdomen, which likely ruptured some of the viscera, particularly the kidney and the intestines.

"In this connection, plaintiff says that defendant, Arlas Peveto, at said time and place further negligently drove, operated and managed said Ford V8 Truck in this:

"(2) That defendant, Arlas Peveto, at said time and place drove and operated said Ford V8 truck upon a public highway and road in this State while under the influence of intoxicating liquor in violation of Article 802 of the Penal Code of this State, Acts 2nd C.S., 1923, page 56;

* * * * * *

"That by reason of such negligent, careless and incompetent and inexperienced management of said Ford V8 Truck by defendant, Arlas Peveto, and as a direct and proximate result therefrom, the said Ford V8 Truck struck, knocked, collided, ran into and against the rear of said Dodge Sedan with great violence, knocked, propelled, broke and damaged the same, and threw the said Charles Olen Smith on and about the engine, windshield, and fenders of said Sedan and down and upon said highway whereby he received the injuries hereinbefore mentioned, which caused his death; and in this connection plaintiff further alleges that said collision, the injuries to the said Charles Olen Smith, which later caused his death, all herein fully alleged, each and all, were caused by the negligent acts on the part of defendant, Arlas Peveto, herein alleged, and that each and all of said acts of negligence hereinabove stated were direct and proximate causes of said collision, the injuries to the said Charles Olen Smith, which later caused his death."

Among the numerous special issues submitted to the jury by the trial court were the following:

"Special Issue No. 1.

"Do you find from a preponderance of the evidence that on or about April 22, 1936, defendant Arlas Peveto drove a new Ford V8 truck into Charles Olen Smith's Dodge Sedan?

"Answer `he did' or `he did not' as you find the facts to be."

The jury answered: "He did."

"Special Issue No. 2.

"Do you find from a preponderance of the evidence that Charles Olen Smith received injuries from such collision, if you have found that defendant, Arlas Peveto, did drive said Ford V8 truck into Charles Olen Smith's Dodge Sedan?

"Answer that `he did' or `he did not', as you find the facts to be."

The jury answered: "He did."

"Special Issue No. 3.

"Do you find from a preponderance of the evidence that Charles Olen Smith died as a result of such injuries, if you have found that he received injuries in such collision, if any?

"Answer `he did' or `he did not', as you find the facts to be."

The jury answered: "He did."

"Special Issue No. 4.

"Do you find from a preponderance of the evidence that at the time and place of the collision, if any, that defendant, Arlas Peveto, drove said Ford V8 truck while under the influence of intoxicating liquor?

"Answer `he did' or `he did not', as you find the facts to be."

The jury answered: "He did."

"Special Issue No. 5.

"Do you find from a preponderance of the evidence that defendant, Arlas Peveto's act of driving said truck at said time and place while under the influence of intoxicating liquor, if you have so found, was negligence as that term has been defined for you?

"Answer `yes' or `no' as you find the facts to be."

The jury answered: "Yes."

"Special Issue No. 6.

"Do you find that such negligence, if you have found that it was negligence, was a proximate cause of the injuries received by Charles Olen Smith, if any?

"Answer `yes' or `no' as you find the facts to be."

The jury answered "Yes."

"Special Issue No. 7.

"Do you find from a preponderance of the evidence that the injuries received by Charles Olen Smith on the occasion in question were not the result of an unavoidable accident as that term is herein defined?

"You are instructed to answer `it was an unavoidable accident' or `it was not an unavoidable accident' as you find the facts to be."

The jury answered: "It was not an unavoidable accident."

The first ground of complaint which we shall consider is to the effect that the evidence is insufficient to raise the fact issue submitted to the jury in Special Issue No. 6. That is to say, that there is no evidence to show that the negligence of Peveto, in driving his truck at said time and place while under the influence of intoxicating liquor, as found by the jury, was the proximate cause of the injuries received by Olen Smith. The testimony bearing on this question is substantially as follows:

The public road from the City of Beaumont to the small town of Vidor runs in a southeasterly direction to Vidor and on farther to the City of Orange. In the eastern edge of Beaumont the road crosses the Neches river over a long viaduct. Louisiana street, in Beaumont, runs in the same direction as said public road and terminates at the corporate boundary of the city which crosses the viaduct some 200 or 300 feet from the western end thereof. The way across the viaduct is about 16 or 18 feet wide. At the trial of the case, it was stipulated by the parties that Everett Smith, who was absent, would, if present, testify to the following facts, and such stipulation was introduced in testimony, towit: In the evening of April 22, 1936, Everett and Olen left Beaumont, in Olen's Dodge Sedan, to go to Vidor. As they were driving along on the viaduct, just outside the city limits of Beaumont, the car ran out of gasoline and the car stopped on the right-hand side of the viaduct. The vacuum tank of the car was found to be dry. They left the car parked on the viaduct and went back to the Shell Filling Station, which was situated at the western end of the viaduct. Olen stopped at the filling station and Everett went on into Beaumont and did not see Olen again until the next morning at the hospital.

J. W. Long testified, in substance: Along about 6 or 7 o'clock in the evening of April 22, 1936, Long drove across the viaduct, in his car, on his way to Vidor. He passed Olen's car which was parked on the right-hand side of the viaduct. As he was approaching the car, he saw it...