Roadway Express v. Gaston

• Decision Date: 21 November 1935
• Docket Number: No. 4740.,4740.
• Citation: 90 S.W.2d 874
• Parties: ROADWAY EXPRESS, Inc., et al. v. GASTON.
• Court: Texas Court of Appeals

90 S.W.2d 874

ROADWAY EXPRESS, Inc., et al. v. GASTON.

No. 4740.

Court of Civil Appeals of Texas. Texarkana.

November 21, 1935.

Rehearing Denied November 28, 1935.

Appeal from District Court, Hopkins County; Chas. D. Berry, Judge.

Suit by C. C. Gaston against the Roadway Express, Incorporated, Elliott Jones as attorney in fact of and for Lloyds America, and another. From an adverse judgment, the named defendants appeal.

Affirmed.

Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, and J. K. Brim, of Sulphur Springs, for appellants.

Ramey & Fanning, of Sulphur Springs, and Clark, Harrell & Clark, of Greenville, for appellee.

JOHNSON, Chief Justice.

Appellee, C. C. Gaston, filed this suit in the district court of Hopkins county against G. O. Jones, Roadway Express, Inc., and Elliott Jones as attorney in fact of and for Lloyds America, defendants, to recover damages for injuries to himself and to his automobile, alleged to have been sustained as the result of the negligence of Roadway Express, Inc., its agent and employee, G. O. Jones, in operating and driving a certain truck and trailer belonging to Roadway Express, Inc., into and colliding with plaintiff's automobile on Highway No. 1 in Hopkins county, Tex., on August 5, 1932.

Plaintiff's petition alleged in part and in substance that the defendant Roadway Express, Inc., is a foreign corporation having its domicile in the city of Akron, Ohio, with a branch office and duly authorized agent in the city of Dallas, Dallas county, Tex., and is engaged in the business of a motor carrier within the meaning of the Acts of the 41st Legislature, chapter 314, as amended by Act of 42d Legislature, chapter 277 (Vernon's Ann.Civ.St. art. 911b).

That the defendant G. O. Jones resided in the city of Irondale, Ala., and was the employee and agent of Roadway Express, Inc., driving its said truck and trailer which collided with plaintiff's automobile, and was operating said truck under and as holder of driver's license No. 4857, issued by the Railroad Commission of Texas; that it was a GMC truck, 1½-ton capacity, motor No. 860239, with a 3-ton semitrailer attached, which truck bore license plate No. 5863, issued by the Railroad Commission of the State of Texas.

That the defendant Lloyds America is a Texas company engaged in the insurance business on Lloyd's plan authorized under the provisions of chapter 19, title 78, R.S. (article 5013 et seq.), as amended by Acts of 1929, 42d Legislature, 1st Called Session, chapter 11 (Vernon's Ann.Civ.St. art. 5013 et seq.), of which Elliott Jones of San Antonio is the attorney in fact. That said defendant, Lloyds America, by and through its attorney in fact, Elliott Jones, had issued and filed with the Railroad Commission of the State of Texas its policy of insurance No. MB-1819, effective July 9, 1932, and which was in full force and effect at the time of the collision in question, covering said motortruck of Roadway Express, Inc. That by the terms of said policy of insurance Lloyds America and the underwriters thereof contracted and agreed to pay all judgments which may be recovered against Roadway Express, Inc., and G. O. Jones, based on claims for loss or damages for personal injuries or injury to property arising out of the operation of said motortruck, to the extent of $5,000 for injury or damage to property and to the extent of $2,500 for bodily injury or injuries to any one person in said accident, regardless of the solvency or insolvency of said motor carrier or of the driver of said truck.

The petition further alleged facts constituting negligence in operating the truck causing the collision, and the manner and extent of injuries to plaintiff and his automobile.

Defendant Roadway Express, Inc., filed its plea of privilege to be sued in Dallas county, Tex. The defendant Lloyds America, by and through its attorney in fact, Elliott Jones, filed its plea of privilege to be sued in Bexar county, Tex. The plaintiff filed controverting affidavits contesting each of said pleas of privilege, contending that as to Roadway Express, Inc., venue was properly laid in Hopkins county, under subdivisions 9 and 23 of article 1995, R.S.; and that as to Lloyds America the venue was properly laid in Hopkins county under subdivision 23 of article 1995, R.S., and subdivision 29a as added by Acts 1927, 1st Called Sess., c. 72, § 2 (Vernon's Ann. Civ.St. art. 1995, subd. 29a).

On hearing before the court both pleas of privilege were overruled, to which said defendants duly excepted and have perfected their appeals in the same record.

We will first dispose of the appeal of Roadway Express, Inc. Its contention is that the evidence introduced on the hearing of the plea of privilege failed to establish a prima facie cause against it, in the particular that it failed to show that the driver of the truck was the agent or employee of the Roadway Express, Inc., and it complains of the action of the court in admitting certain declarations of the driver of the truck, G. O. Jones, and in admitting in evidence plaintiff's original petition and his controverting affidavits which referred to and adopted as a part thereof the original petition.

The evidence shows that the collision occurred on Highway No. 1 near the town of Weaver, in Hopkins county, Tex.; that it was caused by the negligence of the driver of the truck in operating it on the left side of the road; that appellee sustained serious bodily injury; and that his automobile was wrecked. And, without objection on the part of appellants, Byron Bell, an employee in the Motor Transportation Division of the Railroad Commission of the State of Texas, testified, by deposition from the records of the Railroad Commission, that Roadway Express, Inc., had made application for and had been granted a permit to engage in the business of motor carrier in the state of Texas; that permit No. 11000 was issued to it on December 11, 1931, and was in effect on the date of the collision, August 5, 1932; that in its application it had described and been granted license to operate a GMC truck, 1½-ton capacity, motor No. 860239, with 3-ton semitrailer, which license so issued by the Railroad Commission to Roadway Express, Inc., as a motor carrier, to be attached to said truck, was license No. 5863; that Roadway Express, Inc., had filed, as required of motor carriers by law, article 911b, § 13, Vernon's Ann.Civ.St., a policy of insurance issued by Lloyds America which described and covered the GMC truck, motor No. 860239, and trailer in question, and which policy of insurance was in force and effect at the time of the collision.

The appellee did not identify the driver or the truck which struck him. He testified that the collision occurred near the town of Weaver in Hopkins county, Tex.; that he was operating his automobile on the right-hand side of the road at the time he was struck; that he was rendered unconscious and did not regain consciousness until after he was carried to the hospital. He further testified to his injuries and to the destruction of his automobile resulting from the collision. E. C. Gaston, father of appellee, testified, in substance, that upon hearing of the collision he went to Hopkins county and to the place of the accident that night; that he saw the truck that was reported to have been one of the vehicles in the collision, in a shop at Weaver the next morning, and that he talked with the men who were driving the truck; that he got acquainted with them, and their names were G. O. Jones and E. D. Bruce; that he got the identification numbers of the truck, which were license No. 5863 and motor No. 860239; and that G. O. Jones told witness at the time "that he was working for Roadway Express, Inc." Plaintiff introduced his original petition and the controverting affidavits. Plaintiff also introduced interrogatory No. 13 propounded to defendant's witness E. D. Bruce: "Q. Who was driving the truck? A. Giles Jones."

The defendants introduced a copy of the contract of insurance issued by Lloyds America to Roadway Express, Inc.

The original petition and contesting affidavits of plaintiff were before the court to determine the nature of plaintiff's cause of action and the grounds upon which he sought to confer venue in Hopkins county, but they were not proof of such alleged facts and should not have been admitted in evidence. Highway Motor Freight Lines v. Slaughter (Tex.Civ.App.) 84 S.W.(2d) 533, and authorities there cited. We think, in the circumstances of this case, the declarations complained of made by G. O. Jones were admissible as part of the res gestæ and in corroboration of the facts already established. By other competent evidence a prima facie case had been made showing ownership of the truck in Roadway Express, Inc., a motor carrier authorized to operate it upon the public highways, and that G. O. Jones was the driver in charge of the truck at the time of the collision. The rule is stated from authorities there cited in 17 C.J. p. 531, § 228, as follows: "The fact that a person is the agent or servant of another cannot be shown by the declaration or statements of the agent or servant standing alone. But where there is other evidence sufficient to show the fact of agency or employment prima facie, declarations or statements are admissible in corroboration, especially where they constitute a part of the res gestae of the transaction in question."

In 10 R.C.L. § 166, p. 984, it is said: "Declarations as to the ownership of property, made by a person in possession thereof, are admissible in evidence upon an issue as to such ownership as part of the res gestae. This includes all declarations explaining and characterizing the possession, and showing in what capacity the declarant holds, whether as owner solely or jointly, or as the agent, tenant, or trustee of another, and the like, and when the possession or ownership of the property is under inquiry, such...