Reilly v. Buster

• Decision Date: 22 May 1935
• Docket Number: No. 1867-6387.,1867-6387.
• Citation: 82 S.W.2d 931
• Parties: REILLY v. BUSTER et ux.
• Court: Texas Supreme Court

Page 931

82 S.W.2d 931

REILLY v. BUSTER et ux.

No. 1867-6387.

Commission of Appeals of Texas, Section A.

May 22, 1935.

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

Action by S. W. Buster and wife against C. A. Reilly. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [52 S.W.(2d) 521], and defendant brings error.

Reversed and remanded.

D. A. Frank and W. P. Bondies, both of Dallas, and Reeder & Reeder, of Amarillo, for plaintiff in error.

Sanders & Scott, of Amarillo, and J. D. Barker, of Canyon, for defendants in error.

GERMAN, Commissioner.

This was a suit by defendants in error, S. W. Buster and wife, Mary Frances Buster, against plaintiff in error, C. A. Reilly, for damages because of an injury to Mrs. Buster. The evidence with reference to the accident and the injury to Mrs. Buster is practically undisputed. On the night of September 20, 1931, Mr. and Mrs. Buster were traveling south on state highway No. 33 from Amarillo to Canyon. When about 10 miles from Amarillo, they came to the scene of an accident which had occurred upon the highway a few minutes prior to their arrival. They stopped their car off the pavement a short distance from the wrecked cars and walked to the place of the occurrence. While engaged in waiting upon a woman who had been injured, and while standing near the western margin of the pavement, Mrs. Buster was struck by a truck going north and was severely injured. It cannot be questioned that the truck which struck Mrs. Buster was driven by one G. R. Carlton and all witnesses testify that it was being driven at a rate of speed of 35 or 40 miles per hour. Certain rubbish had been left on the highway after the wreck of the cars, and it seems reasonably certain that when Carlton approached this rubbish he turned the truck to the west side of the highway, and in doing so ran the truck against Mrs. Buster, knocking her to the ground and injuring her severely. It is shown that quite a number of cars had stopped on the side of the highway, some turned north and some turned south, and that several of them had their headlights burning, so that the road where Mrs. Buster stood when struck was well lighted. There appears no reason why Carlton could not have seen the cars and people on the side of the highway, as well as the rubbish in the road in ample time to have brought his car to a stop or in time to have reduced his speed and prevented the accident.

Neither Carlton nor plaintiff in error, Reilly, was present at the trial and no testimony was offered in behalf of plaintiff in error. The jury found Carlton guilty of negligence in several particulars, one of which was in driving upon the left side of the road at a high rate of speed. Numerous objections were made to special issues submitting the questions of negligence. The Court of Civil Appeals held that as the evidence showed beyond dispute that Carlton was guilty of negligence as a matter of law, which was the proximate cause of the injury to Mrs. Buster, the matters complained of, if erroneous, were not such as to require a reversal of the case. 52 S.W.(2d) 521. In this holding we agree with the Court of Civil Appeals and we think proper disposition was made of all questions with reference to unavoidable accident, contributory negligence, and failure to submit the affirmative defenses alleged by plaintiff in error. None of these matters were raised by the evidence. We refer to the opinion of the Court of Civil Appeals for a discussion in detail of these various matters.

As the case must be reversed for the reason hereinafter mentioned, we suggest that if upon another trial it becomes necessary to submit to the jury issues of negligence and contributory negligence, that the usual terms employed in a charge, such as negligence, ordinary care, proximate cause, etc., be defined in accordance with the form which has now become practically standard.

Among the questions submitted to the jury and answered by them in the affirmative were the following:

"(c) Was such truck, at the time plaintiff was, if she was, so struck by it, operated by G. R. Carlton? and,

"(d) Was such Carlton, when he did, if he did, so operate said truck, acting as the agent of C. A. Reilly? and

"(e) Was such truck, if any so operated, owned by the said C. A. Reilly?"

Except for statement contained in what purports to be the ex parte deposition of plaintiff in error, Reilly, the testimony tending to show that the truck which struck Mrs. Buster belonged to Reilly and the testimony tending to show that Carlton was operating the truck as agent of and on behalf of Reilly was very meager. Obviously, for this reason, counsel for defendants in error offered in evidence the purported ex parte deposition of Reilly taken orally. As shown by the bill of exception, this deposition was objected to for various reasons including the following:

"1. That the so-called deposition was taken without any notice whatsoever to the defendant or his attorneys;

"2. That ten days written notice was not given by the plaintiff to the defendant of their intention of taking said deposition;

"3. Because there is no provision in the law for taking the ex parte oral deposition of the defendant without notice;

"4. An examination of the so-called deposition shows on its face that it was taken without the authority of a commission;

"5. Because the said deposition does not show to have any commission accompanying the same;

"6. Because the said deposition does not show to have been returned in an envelope into court, as required by law."

The bill of exception has a qualification which shows, among other things, the following: That there was a commission found among the papers, but it was not attached to the answers of Reilly and did not bear any file mark; that the answers alone bore a file mark; that no envelope was found among the papers; that the clerk testified to...