Phoenix Refining Co. v. Powell

• Decision Date: 10 September 1952
• Docket Number: No. 12423,12423
• Citation: 251 S.W.2d 892
• Parties: PHOENIX REFINING CO., Inc. v. POWELL et al.
• Court: Texas Court of Appeals

Page 892

251 S.W.2d 892

PHOENIX REFINING CO., Inc. v. POWELL et al.

No. 12423.

Court of Civil Appeals of Texas, San Antonio.

Sept. 10, 1952.

Rehearing Denied Oct. 1, 1952.

Trueheart, McMillan & Russell, San Antonio, for appellant.

McKay & Avery, Austin, Boyle, Wheeler, Gresham & Davis, Richard T. Davis, San Antonio, for appellee.

NORVELL, Justice.

This litigation, according to the statement of attorney for appellant, resulted from 'the worst and probably the last accident to occur at the Burnell underpass' on U. S. Highway No. 181, between the towns of Kenedy and Pettus, Texas. Vail Ennis, the sheriff of Bee County, testified that from fifteen to twenty people had been killed in accidents at the underpass, and it now appears that the route of the highway has been changed in the locality, probably as a result of the collision which occasioned this lawsuit.

The vehicles involved were a flattopped truck owned by appellee, E. L. Powell and Sons Trucking Company (a copartnership composed of E. L. Powell, H. H. Powell and B. L. Powell), and a gasoline tank truck owned by Phoenix Refining Company, Inc. The Powell truck was travelling in a southerly direction and was loaded with two separators or heat treaters designed for oil field use, which were constructed of heavy steel plate and were approximately thirty feet in length. The tank truck was travelling north and carried approximately 4000 gallons of gasoline which became ignited immediately following the collision. Ralph L. Grimes, the driver of the Phoenix truck, a passenger riding with him and M. F. Redick, the driver of the Powell truck, were all killed as a result of the collision. Redick was trapped in the cab of his overturned truck and could not be extricated before the burning gasoline reached him and caused his death.

It is indicated that this is perhaps the first of a number of lawsuits. Phoenix, as plaintiff, sued Powell for the value of its truck and Powell, by cross-action, sued to recover for the destruction of its vehicle. Upon jury findings, judgment was rendered that neither party recover from the other. Phoenix only has appealed. As there was no surviving eye witness, the events and occurrences of the night of October 25, 1950, must be reconstructed upon a circumstantial evidence basis. It is appellant's contention that the jury findings for Powell upon which the judgment is based are supported by mere surmise and conjecture and that consequently the judgment can not stand. Law questions of 'no evidence,' as distinguished from the fact contentions of 'insufficient evidence' or 'overwhelming preponderance of the evidence,' only are raised. King v. King, Tex.Sup., 244 S.W.2d 660. Appellant's prayer is for rendition of judgment in its favor and not for a remand of the case.

The case was submitted upon a total of twenty-nine issues. Those pertinent to our inquiry are the following:

Question No. 1: 'Do you find from a preponderance of the evidence that the driver of the Powell truck drove said truck to his left-hand side of the highway as he approached the point of the accident in question? Answer: Yes.'

'Question No. 1-a: 'Do you find from a preponderance of the evidence that such act, if any (inquired about in Question No. 1), was negligence? Answer: No.'

Question No. 2: 'Do you find from a preponderance of the evidence that such act, if any (inquired about in Question No. 1), was a proximate cause of the accident and the damages resulting therefrom? Answer: Yes.'

'Question No. 26: 'Do you find from a preponderance of the evidence that just prior to and at the time of the accident in question the driver of the Powell truck was acting under an emergency? Answer: Yes.'

'Question No. 27: 'Do you find from a preponderance of the evidence that after the emergency, if any, arose, the driver of the Powell truck, did what an ordinary prudent person would have done under the same or similar circumstances? Answer: Yes.'

Question No. 28: 'Do you find from a preponderance of the evidence that the accident in question was not the result of an unavoidable accident? Answer: It was an unavoidable accident.'

It is appellant's contention that it is entitled to judgment upon the jury's finding that the driver of the Powell truck had driven his vehicle upon his left-hand side of the highway, which was a violation of the penal code and hence negligence perse, and that such action was a proximate cause of the damages resulting from the collision.

It is apparently undisputed that the 'driver of the Powell truck drove said truck to his left-hand side of the highway.' (An operator attempting to control the movements of a motor vehicle which is defective in certain of its parts is commonly regarded as 'driving' the vehicle despite a failure to exercise fully effective control. 'To drive' means 'to give a forward impetus to; to propel; impel.' Shafer v. Glander, 153 Ohio St. 483, 92 N.E.2d 601, 604; Bosse v. Marye, 80 Cal.App. 109, 250 P. 693. 'The person in control of the motive power of a motor vehicle is said to be 'driving' it.' Grant v. Chicago, M. & St. P. Ry. Co., 78 Mont. 97, 252 P. 382, 385, citing Commonwealth v. Crowninshield, 187 Mass. 221, 72 N.E. 963, 68 L.R.A. 245.) Appellee argues that this driving on the left-hand side of the road in violation of the penal code was excusable in that its driver 'attempted to make such application of his brakes as he could under the circumstances and otherwise attempted to control the movement of the vehicle,' but was unable to do so through no negligence on his part because of a suddenly deflated tire. Appellant's contention counter to this is that there is no evidence, as distinguished from mere surmise and conjecture, raising the issue of excuse for the violation of a penal statute.

The Texas rule with reference to civilly excusable violations of the penal code seems in accord with the general American rule and is fairly clear, except perhaps as to the burden of proof in certain factual and procedural situations.

Questions involving excusable violations of the criminal law and the civil consequences resulting therefrom have been discussed in a number of comparatively recent law review atticles. 46 Harvard Law Review 453, 25 Texas Law Review 424, and 27 Texas Law Review 866. Perhaps the best considered of these treatments is that of Clarence Morris, styled, 'The Role of Criminal Statutes in Negligence Actions,' contained in 49 Columbia Law Review 21, and Morris', 'Studies in the Law of Torts,' p. 141.

After pointing out that in certain instances the adoption of a penal statute may introduce new grounds of liability into the civil law, and that consequently the adoption of criminal legislation may result in something more than a substitution of another standard for that of the reasonably prudent man, Morris nevertheless points out that:

'In many instances * * * the substitution of the criminal proscription for the reasonably-prudent-man formula is the use of a more exact standard to accomplish with greater smoothness the results that the common law had always tried to reach. But even though the criminal proscription normally is a good test of negligence, if it is used inflexibly in all cases it may produce some untoward results. The doctrine of negligence per se purports to rob the judge of judicial functions. It places responsibilities on a legislature that could not possibly conceive of all cases to which its proscription might apply and that has not provided for civil liability, and that, therefore, surely has not considered proper limitation and excuses. At times violation of the criminal law is not unreasonable. If the doctrine of negligence per se is applied obdurately to reasonable violators their liability can be justified only on some basis other than fault-if at all.'

Negligence implies fault and, 'If liability is to be extended beyond fault, the phrase 'negligence per se' is, at least, a misnomer.' Morris makes the further observation that, 'some defendants guilty of breaking the criminal law should not be civilly liable and some defendants technically entitled to acquittal in criminal prosecution should be held liable in civil suits. Since civil liability has not been dealt with by the legistature, judges cannot avoid the responsibility of deciding the problems peculiar to civil liability which may remain even after the statute has been properly interpreted.'

A statute enforcible as a penal ordinance must not necessarily be given effect as fixing civil liability for, 'If a constitutional statute, properly interpreted, enacts unwise criminal responsibility, the courts may be bound to convict in accordance with the statute. But when a damage suit judge refuses to rule that breach of a criminal statute is negligence * * * he is not disobeying the legislature's command, for the legislature has ordered criminal responsibility-not civil liability.' Morris, p. 168.

Similarly, a penal provision for some reason ineffective as such may be taken as a standard for civil liability, if suitable for the purpose. Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777 (wherein a penal ordinance was held invalid as such because not properly published).

Undoubtedly the penal provision forbidding driving on the left-hand side of the road prescribes an appropriate standard for measuring civil liability, but this does not mean that it must be rigidly applied under any and all fact circumstances. We think the trial court was correct in so holding.

It will be noted that the trial court submitted two issues having reference to a claimed excuse for violating a penal statute in which the burden of proof was placed upon the appellant as plaintiff below. These were the issue of negligence, as determined by the reasonably prudent man standard (Question No. 1-a) and the 'unavoidable accident' issue (Question No. 28). The court also submitted the theory of emergency by two questions, Nos. 26 and 27. On these issues the burden...