Red Top Taxi Co. v. Snow

• Citation: 452 S.W.2d 772
• Decision Date: 26 February 1970
• Docket Number: No. 512,512
• Parties: RED TOP TAXI COMPANY et al., Victor Moreno d/b/a Red Top Taxi Company, and Roberto Bazan, Appellants, v. Raymond D. SNOW et ux., Individually, and as Manager of the Community Property of his wife Lois F. Snow, and Lois F. Snow, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 772

452 S.W.2d 772

RED TOP TAXI COMPANY et al., Victor Moreno d/b/a Red Top

Taxi Company, and Roberto Bazan, Appellants, v. Raymond D. SNOW et ux., Individually, and as Manager of the

Community Property of his wife Lois F. Snow, and

Lois F. Snow, Appellees.

No. 512.

Court of Civil Appeals of Texas,

Corpus Christi.

Feb. 26, 1970.

Rehearing Denied April 16, 1970.

Bonilla, DePena, Read & Bonilla, Wm. J. Nutto, Leo Duran, Walter Groce (on motion for rehearing), Corpus Christi, for appellants.

Francis I. Gandy, Jr., Corpus Christi, for appellees.

OPINION

SHARPE, Justice.

This suit was instituted by appellees Raymond D. Snow and wife, Lois F. Snow, against appellants, Victor Moreno, d/b/a Red Top Taxi Company and Roberto Bazan, for damages on account of personal injuries to Mrs. Snow and property damage to appellees' automobile resulting from a collision in Corpus Christi, Texas on November 7, 1967 between a Red Top Taxicab operated by Roberto Bazan and the car being driven by Mrs. Snow. Employers Casualty Company filed a petition in intervention based upon its subrogation claim for payments made under an insurance policy covering damages to the Snow automobile. After jury trial the court rendered judgment in favor of appellees and the Intervenor against appellants in the amount of $12,322.34, of which Mrs. Lois F. Snow was awarded $10,000.00, Mr. Raymond D. Snow $886.00, and Intervenor, Employers Casualty Company $1436.34.

The court submitted sixteen special issues to the jury which were found favorably to appellees (except those conditionally submitted and not answered). The jury found three grounds of negligence against Bazan which in substance were (1) failure to stop at a stop sign controlling the intersection at which the collision occurred, (2) driving the taxicab at an excessive rate of speed and (3) failure to make proper application of the brakes on the taxicab, and that each act or omission was a proximate cause of the collision in question. The jury refused to find that Mrs. Snow was guilty of contributory negligence and found that the collision was not the result of an unavoidable accident. The damage issues were answered in an aggregate amount of $12,322.34.

The collision took place on the morning of November 7, 1967 at the intersection of Buddy Lawrence Drive with a frontage road of Interstate Highway 37 within the city limits of Corpus Christi, Texas. At the time of the collision and just prior thereto Mrs. Snow was driving her car on Buddy Lawrence Drive and Bazan was operating the Red Top Taxicab on the frontage road approaching Buddy Lawrence Drive to the right of Mrs. Snow's car. There were two stop signs on the frontage road (one on either side thereof) facing Bazan. There were no signs or traffic control devices on Buddy Lawrence Drive. The streets were wet due to rain or mist prior to and at the time of the collision. Bazan admittedly did not stop at the intersection, his testimony being in substance that he applied the brakes on the Red Top Taxicab but it slid past the stop sign and collided with the Snow automobile. Just prior to the collision Mrs. Snow had driven her car on Buddy Lawrence Drive past an embankment underlying Interstate Highway 37, which passes over Buddy Lawrence Drive at that point. Mrs. Snow testified in substance that she then saw the taxicab, applied her brakes and tried to turn her car but there was not time to avoid the collision. The evidence was legally and factually sufficient to support the jury findings on the liability issues.

Appellants assert forty-nine points of error which we will principally consider in terms of the basic contentions included therein.

The basic contention of appellant Moreno, raised by Point One and other related points of error concerns the finding of the trial court, included in the judgment, 'that Roberto Bazan was an employee of Victor Moreno, d/b/a Red Top Taxi Company, and at the time of the collision made the basis of this suit, Roberto Bazan was operating a taxicab and was acting within the scope and course of his employment with Victor Moreno, d/b/a Red Top Taxi Company.' Moreno says in substance that there was no evidence to show either a master-servant relationship between Moreno, d/b/a Red Top Taxi Company and Bazan or that Bazan was acting within the scope of his employment at the time of the collision between the taxicab operated by Bazan and the automobile operated by Mrs. Snow. Moreno further contends that for such reasons his motion for directed verdict after the evidence was closed and his motion for judgment non obstante veredicto should have been granted. We disagree with such contentions because the facts found by the trial court, as above-stated, were conclusively established. This is true because of allegations and admissions made by Moreno in his pleadings and sworn answers to appellees' request for admissions considered in connection with the testimony of Bazan. Therefore, there were no issues to be submitted to the jury concerning the facts so found by the trial court.

The defendants' second amended original answer contained a number of dilatory pleas (which preceded a general denial) including special exceptions and others without specific designations, all of which were sworn to by Victor Moreno who answered as 'Victor Moreno, d/b/a Red Top Taxi Company.' Some of these special exceptions and pleas read as follows:

'VIII.

'Further, Defendants specially except to Paragraph IV in Plaintiff's First Amended Original Petition because the same treats Victor Moreno and Red Top Taxi Company as separate legal entities whereas and in fact they are but one in the same legal entity.

X.

'Defendants further specially except to say that there is a defect in parties' Defendants in that Red Top Taxi Company as such is but an assumed name under which Defendant, Victor Moreno, does business as a proprietorship; the same being solely owned and operated by Defendant, Victor Moreno; that the designation of Red Top Taxi Company as a separate legal entity to be sued should be stricken in all respects throughout Plaintiff's Pleadings.

XI.

'Defendants specially alleges that Red Top Taxi Company has not the legal capacity to be sued as a separate legal entity since said company is solely owned and operated by Defendant, Victor Moreno, as a proprietorship; wherein the said Defendant, Victor Moreno, does business as Red Top Taxi Company; that the separate designation of Red Top Taxi Company as a separate legal entity to be sued should be stricken in all respects throughout Plaintiff's Pleadings.

XII.

'That Plaintiff is not entitled to recover anything against Red Top Taxi Company since the same is but an assumed name under which Defendant, Victor Moreno, solely does business as proprietorship. That the designation in Plaintiff's Pleadings against Red Top Taxi Company as a separate and legal entity to be sued should be stricken in all respects.'

Appellants also filed a separate answer to the petition in intervention of Employers Casualty Company (based upon a subrogation claim for $1436.64 paid under an insurance policy for damages to the Snow automobile) in which Moreno answered as 'Victor Moreno d/b/a Red Top Taxi Company.'

In reply to appellees' request for admissions Victor Moreno filed sworn answers in which he admitted, among other things, that Red Top Taxi was one of the defendants in the case, had been served with proper process and had appeared therein; that on November 7, 1967, Red Top was the owner of a 1966 Plymouth Taxicab, 1967 Texas License Plate No. HW 2922; and that on November 7, 1967 Roberto Bazan operated that Taxicab. In response to request for admission No. 7 that 'On November 7, 1967, Roberto Bazan was an employee of Red Top,' Moreno, d/b/a Red Top Taxicab Company answered 'Denied, on the basis that Roberto Bazan was working on a commission basis only.' In response to other related requests for admissions concerning use of the Taxicab and the duties of Bazan as an employee, Moreno answered in part 'While Roberto Bazan does drive a taxi on a commission basis for Victor Moreno, Victor Moreno does state that the said Roberto Bazan does not work as an employee of his all day long but does activities on his own,' and Moreno also in part answered 'Denied by reason of the fact that Roberto Bazan is not really an employee of the Red Top Taxi Company because he works on a commission basis' (answer to request No. 16). In answer to request No. 23 'That mechanical failure of any part of the Plymouth taxicab referred to in the foregoing requests, in no way contributed to the collision in which the Plymouth taxicab was involved on November 7, 1967' Moreno answered 'cannot answer this Request for Admission because the said Victor Moreno is still investigating the reasons why the automobile skidden prior to the accident.' Roberto Bazan testified in part that he was working for Red Top Taxi Company on November 7, 1967, began his work at 9:00 A.M. on that date, and was on duty for Red Top Taxi Company and had a passenger in his cab at the time of the collision with the Snow vehicle. Bazan further testified that he called the office immediately after the collision, reported the accident and the manager or supervisor of the cab company came to the scene of the accident shortly thereafter.

It is well settled that facts which are alleged by both parties or admitted in trial pleadings are established as a matter of law and do not require further proof. A litigant is not required to prove the allegations of fact admitted by his adversary to be true. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (1941); Canales v. Bank of California, 316 S.W.2d 314, 318 (Tex.Civ.App., Eastland, 1958, wr. ref. n.r.e.) and authorities therein cited.

The rule concerning facts established by the pleadings is also applicable to admissions under Rule 169, Texas Rules of Civil Procedure. See Lance v. Pepsi-Cola Bottling Company, 380 S.W.2d...