Robertson v. Southwestern Bell Tel. Co.

• Decision Date: 12 May 1966
• Docket Number: No. 203,203
• Citation: 403 S.W.2d 459
• Court: Texas Court of Appeals
• Parties: John T. ROBERTSON, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY et al., Appellees. . Tyler

Page 459

403 S.W.2d 459

John T. ROBERTSON, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY et al., Appellees.

No. 203.

Court of Civil Appeals of Texas Tyler.

May 12, 1966.

Jack K. Allen, Odom & Allen, Tyler, for appellant.

James H. Hand, Dallas, Jack W. Flock, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee Southwestern Bell Telephone Co.

Jack W. Flock, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee E. O. Doggett.

Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee Homer Lee Tucker.

DUNAGAN, Chief Justice.

This is a damage suit for personal injuries instituted by appellant, John T. Robertson, in the 114th District Court of Smith County, Texas. Defendants below were Southwestern Bell Telephone Company, E. O. Doggett and Homer Lee Tucker. At the conclusion of plaintiff's evidence, defendant E. O. Doggett made his motion for instructed verdict, which was considered by the court and sustained.

Trial was before a jury at the conclusion of which the trial court submitted nine Special Issues. In response to the issues submitted, the jury made the following findings:

(a) That Homer Lee Tucker caused the telephone line to break by striking the line with the cattle truck he was driving;

(b) That such conduct was not the sole proximate cause of plaintiff's car striking the line on the highway;

(c) That Homer Lee Tucker did not fail to keep a proper lookout;

(d) That Southwestern Bell Telephone Company was not negligent in maintaining the line at the height it was so maintained; and

(e) That the occurrence was the result of an unavoidable accident.

Upon return of the jury's verdict, all defendants made their motions for judgment and the court entered judgment that John T. Robertson take nothing. From this judgment, appellant now appeals.

For convenience, the appellees will be referred to hereafter as 'Southwestern,' 'Doggett,' and 'Tucker.'

This cause was instituted by appellant against appellee Southwestern on December 3, 1962. Actionable negligence of Southwestern was alleged in permitting one of its telephone wires to 'fall' at the intersection of State Highway No. 271 and the Old Jamestown Road located about 15 miles from the City of Tyler. Appellant alleged that he was riding as a passenger in his automobile and was driving in a southerly direction toward the City of Tyler when the telephone wire 'fell' as his automobile was passing through the intersection aforesaid. Appellant further alleged that the wire caught on the rear bumper of the vehicle and in some manner jerked the vehicle, causing the alleged injuries to appellant.

On January 10, 1964, appellant filed his second amended original petition wherein he made additional parties defendant appellee Doggett, appellee Tucker, and Mrs. Ralph Mauldin. Subsequently, on February 15, 1965, Mrs. Mauldin was dropped from the suit, and on May 28, 1965, appellant filed his fourth amended original petition upon which he went to trial.

A brief summary of appellant's pleadings follows. He alleged that Southwestern, on August 15, 1962, was maintaining a telephone line along the Old Jamestown Road near its intersection with State Highway No. 271, which line furnished service to a farm house located about 1200 feet from said intersection and belonging to appellee Doggett.

According to appellant's allegation, appellee Doggett had employed Ralph Mauldin Trucking Company to come upon his farm and haul some cattle for him and, pursuant to instructions from his employer (Mauldin), appellee Tucker drove the cattle truck into the Doggett farm. In order to get the truck into the Doggett property, it was necessary for appellee Tucker to drive it under the telephone lines owned and maintained by Southwestern. Appellant alleged that just prior to the time the line fell across the highway at the intersection to which reference has been made hereinabove, appellee Tucker drove his cattle truck under the line striking and breaking the same and causing said telephone line to be pulled down for a distance of approximately 1200 feet and to fall upon the automobile in which appellant was riding.

Appellant alleged numerous acts of negligence against Southwestern relating to the manner in which its telephone line was maintained; he alleged two acts of negligence against appellee Doggett in permitting a hump of dirt to remain in the driveway used by Tucker; and he alleged four acts of negligence against appellee Tucker relating to the latter's conduct in driving the cattle truck under and breaking Southwestern's telephone line. None of the allegations of appellant were made in the alternative. He alleged that his injuries resulted from a combination of all negligent acts of the three tort feasors.

Appellant first contends by his Point of Error No. 1 that 'The trial court erred in refusing to allow Plaintiff to plead, either by his Supplemental Petition to his Fourth Amended Original Petition, or by a trial amendment, the theory of 'Res Ipsa Loquitur' and in denying Plaintiff's requested special issues on 'Res Ipsa Loquitur."

There was no dispute between appellant and appellees Southwestern and Doggett with reference to the cause of Southwestern's line being pulled down on the occasion in question. Appellant requested the submission of an issue to the jury and obtained favorable findings thereon that Tucker caused the telephone line of Southwestern to break by striking it with the truck which he was driving into the Doggett farm. None of the appellees were acting in concert; there was no connection between Southwestern and Tucker; and there was no evidence that Southwestern had any knowledge that Tucker was driving the truck into the Doggett farm on the occasion in question. The only relationship between Southwestern and Doggett was that Southwestern furnished the Doggett farm with telephone service. The cause of Southwestern's line falling or being pulled down was known to appellant as early as October 8, 1963, when he filed his first amended original petition. Appellant's counsel also knew from records in his possession that Southwestern reported on August 15, 1962, that its line was pulled down by a truck belonging to Mauldin.

On May 28, 1965, the date of filing of appellant's fourth amended original peitition, he made no contention that he did not know the cause of the accident and in said amended petition he made no mention of relying upon the doctrine of res ipsa loquitur. On May 31, 1965, appellant filed his supplemental petition to plaintiff's fourth amended original petition wherein he, for the first time, attempted to allege that Southwestern had sole control of the telephone wire and that the doctrine of 'res ipsa loquitur' was applicable; but such allegations were not made in the alternative and appellant did not to any extent abandon the allegations contained in his fourth amended original petition. Southwestern, on June 7, 1965, the day the case proceeded to trial, moved to strike that portion of appellant's supplemental petition wherein he attempted to allege res ipsa loquitur. Such motion was, by the trial court, granted. During the trial of the case, appellant never receded from his position that Tucker's cattle truck struck and pulled down Southwestern's telephone line. Appellant's counsel produced proof thereof during the trial of the case. The jury found that the cattle truck of Tucker's had in fact struck and pulled down the line belonging to Southwestern.

The appellee Southwestern contends that the doctrine of 'res ipsa loquitur' was not applicable in this case. Under the doctrine, where it is shown that the defendant exclusively Controlled the instrumentality which produced the injury, and, in the ordinary course of events, injury does not occur absent negligence, the occurrence of the injury itself may warrant an inference of negligence. However, Texas cases require the following elements to be present in any case wherein 'res ipsa loquitur' is relied upon: (1) the injury must be of a kind which ordinarily does not occur if due care has been exercised; (2) The injury must be caused by instrumentality under the control of the defendant; (3) The injured person must be free of any reasonable contributing conduct; and a number of Texas decisions purport to require a further element, namely, (4) Evidence to explain the occurrence must be more readily accessible to the defendant than to the plaintiff. International Creosoting & Construction Co. v. Daniel, 114 S.W.2d 393 (Tex.Civ.App .), 1938, err. dism.; Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Tex.Civ.App.), 1939, n.w.h.; Carothers v. Olshan, 198 S.W.2d 941 (Tex.Civ.App.), 1947, err ref., n.r.e. Where all of the elements are present, the fact of the occurrence may warrant an inference of negligence, but does not compel it. The presumption arising from the happening is a rebuttable one. Where the plaintiff has established a prima facie case of negligence by virtue of the doctrine of res ipsa loquitur, it is encumbent upon the defendant to introduce evidence to explain, rebut or otherwise overcome the presumption or inference that the injury complained of was due to negligence. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659. The doctrine is merely a rule of evidence and if all of the elements necessary to invoke the doctrine are present, an inference may arise against the defendant. But if the defendant comes forward and explains the cause of the occurrence, or offers some evidence to exonerate itself from negligence, the inference or presumption vanishes and plaintiff then is put to the task of alleging and proving actionable negligence against the defendant. Wichita Falls Traction Co. v. Elliott, supra; Sims v. Dallas Ry. & Terminal Co., 135 S.W.2d 142, (Tex.Civ.App.) 1939, n.w.h.

In the case at bar, the doctrine cannot be applied Because appellee Southwestern was not in exclusive control of the instrumentality causing the injury. It was...