Rodriquez v. Carson, 8510

• Decision Date: 31 January 1975
• Docket Number: No. 8510,8510
• Citation: 519 S.W.2d 214
• Court: Texas Court of Appeals
• Parties: Gavino RODRIQUEZ, Appellant, v. Oscar CARSON, Appellee.

Page 214

519 S.W.2d 214

Gavino RODRIQUEZ, Appellant, v. Oscar CARSON, Appellee.

No. 8510.

Court of Civil Appeals of Texas Amarillo.

Jan. 31, 1975.

Rehearing Denied Feb. 24, 1975.

Lovell, Lyle, Cobb & Renfer, Dumas (Michael P. Metcalf, Dumas), for appellant.

Culton, Morgan, Britain & White, Amarillo (Richard L. Cazzell, Amarillo), for appellee.

ELLIS, Chief Justice.

Gavino Rodriquez, plaintiff-appellant, has brought this appeal from a take-nothing summary judgment entered against him in his suit against Oscar Carson, defendant-appellee, for loss of wages and commissions as a truck driver arising by reason of the total disablement of his employer's truck resulting from alleged negligence on the part of the defendant's employee. The truck driven by Rodriquez, which was owned by his employer, was involved in a collision with the defendant's truck driven by his employee, and it was alleged that his negligent acts caused the total disablement of the truck driven by Rodriquez, thereby resulting in the claim against the defendant for loss of income by reason of the interruption in Rodriquez's employment. The trial court sustained the defendant-appellee's motion for summary judgment upon finding that there was no genuine issue as to any material fact and entered judgment that the plaintiff take nothing in his suit. Affirmed.

Gavino Rodriquez was employed as a truck driver by Gaylon Bryan for a base guarantee of $150 per week plus 20% Of the gross profits of the truck he would drive. On June 8, 1973, the truck which Rodriquez ordinarily drove was involved in a collision with a truck owned by appellee, Oscar Carson, and driven by an employee Willard May. The truck owned by Bryan was not repaired or replaced, and after a period of two and one-half months, Rodriquez left the employment of Bryan. He was able to secure new employment at a salary of $130 per seek plus housing as a farm worker. This suit was brought by Rodriquez for recovery of his diminished earnings resulting from the disablement of the truck owned by his employer, Bryan, and brought about by the alleged negligent acts of appellee's employee. Appellee answered by general denial and thereafter filed a motion for summary judgment based upon contentions to the effect that Rodriquez did not suffer any injury for which compensable damages could accrue as a matter of law. Upon a hearing, the motion for summary judgment was sustained by the trial court. This appeal has been perfected from that proceeding.

Appellant complains of the action of the trial court by one point of error. Such complaint is based upon the contention that it was error for the trial court to grant the motion for summary judgment because the evidence showed that legally compensable damages had been suffered by Rodriquez as a result of the collision in question.

The summary judgment entered by the trial court recites that the pleadings, depositions and answers to interrogatories on file show an absence of any genuine issue of any material fact. In a summary judgment proceeding the burden of proof is upon the movant and all doubts as to the existence of a genuine issue as to a material fact are to be resolved against him. Gulbenkian v. Penn., 151 Tex. 412, 252 S.W.2d 929 (1952). The evidence must be viewed in the light most favorable to the party opposing the motion, Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Tex.1963), and when so viewed, before summary judgment is proper, it must be apparent that there is no genuine issue as to any material fact and that the moving parties are entitled to a judgment as a matter of law. See Rule 166--A, Texas Rules of Civil Procedure.

By his original petition, appellant alleges that he has been deprived of a regular driving job because the negligence and recklessness of appellee's employee resulted in the total loss of the truck which he drove on a regular basis and that such truck has not been replaced. The depositions of Rodriquez and Gaylon Bryan reflect that: Rodriquez was employed by Bryan for a guaranteed salary of $150 per week plus a percentage of 20% Of the gross profit which was an average income of $200 to $225 per week, the truck which Rodriquez was driving was owned by Bryan and damaged in the collision with the truck owned by Oscar Carson and driven by his employee; the repair estimates on the Bryan truck were approximately $8,000 and the market value prior to the accident was $7,000; the truck was not repaired or replaced; Rodriquez continued to work for Bryan for a period of 2 1/2 months after the date of the collision at the guaranteed $150 weekly salary; Rodriquez left...