Russell Const. Co. v. Ponder
| Decision Date | 21 September 1944 |
| Docket Number | No. 4247.,4247. |
| Citation | 182 S.W.2d 857 |
| Parties | RUSSELL CONST. CO. v. PONDER et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; W. S. Nichols, Judge.
Action by O. C. Ponder and wife against L. C. Russell, doing business as Russell Construction Company, to recover for the death of plaintiffs' minor son in a collision between defendant's truck and a bicycle operated by plaintiffs' son. From a judgment for plaintiffs, defendant appeals.
Affirmed.
David C. Marcus, of Beaumont, and Kemper, Hicks & Cramer, of Houston, for appellant.
Lamar Cecil, of Beaumont, for appellee.
This is an appeal from a judgment of the district court of Jefferson County, Texas, in favor of appellees, O. C. Ponder and wife, against appellant, L. C. Russell, doing business as Russell Construction Company, for damages arising out of the death of their minor son, growing out of a collision between a truck owned by appellant and a bicycle being operated by the deceased, James Hilton Ponder, the son of the appellees.
On May 30, 1943, James Hilton Ponder was riding a bicycle on Jefferson Avenue, in the town of Groves, Jefferson County, Texas. He was then 14 years old. While proceeding on his right hand side of the street he was struck by the truck of the appellant which was then operated by Frank Reece, Jr. The deceased died within a very short time after the collision.
Frank Reece, Jr., was employed as a truck driver by the appellant and was himself a minor about 15 years of age. He had no commercial vehicle license. The appellant was at the time engaged in hauling dirt over the public highways of Jefferson County, Texas, to a large construction project known locally as the "Rubber Plant" and he was using a number of trucks for that purpose.
The day of the accident was a Sunday and the driver of the truck, Reece, at the noon lunch period drove it away from the job towards his home in Groves, where he expected to get his lunch. His employer, Russell, had forbidden him to use his trucks for the purpose of driving home to lunch, although employees of the appellant occasionally had made such use of appellant's trucks at other times. The brakes of this particular truck were defective and caused the vehicle to veer to the left when the brakes were applied and information to that effect was given to his foreman by Reece before the fatal accident. Reece, the driver, was a reckless and incompetent driver, and one of his fellow-drivers had prior to the fatal accident notified their foreman, the appellant's supervisor of his trucks, of Reece's manner of driving.
The appellees in their pleading charged the appellant with negligence, by various methods of pleading, in originally entrusting a defective motor vehicle to an incompetent driver for operation, and alleged that this act of entrustment was a proximate cause of the death of their son, and further alleged various acts of negligence by Reece which caused the fatal collision.
The appellant defended, maintaining among other things that Reece, the driver, at the time and place and upon the occasion in question had left the scene of his labor and was using his truck without the employer's consent upon a personal mission of his own, and that he was not acting within the course or scope of any employment by the appellant, or as an agent, servant or employee of the appellant.
Frank Reece, Jr., was originally made a defendant but a non suit was taken as to him during the trial of the case.
The case was tried to a jury and in the jury's verdict findings were made: That it was an act of negligence for the appellant and his agents to assign the truck in question to Reece when he did not have a license authorizing him to operate the truck, and that such negligence was the proximate cause of the death of the boy; that Reece habitually operated the truck, or trucks, entrusted to him in such a manner as to likely cause injury to others; that the appellant, and his agents, had knowledge of such manner of operation by Reece; that the act of appellant and his agents in entrusting Reece with such truck was negligence and that such negligence was the proximate cause of the death of the boy; that the brakes upon the truck assigned to Reece were not in good working order; that the appellant and his agents had knowledge of such fact and that it was negligence on the part of appellant and his agents to assign such truck to Reece to operate; that such negligence was a proximate cause of the death of the boy; that various acts of Reece in driving over 30 miles an hour in the town of Groves without having the same under proper control, without keeping the proper lookout, driving on the left hand side of the street when the same was not clear and unobstructed for at least 50 yards ahead of the truck, all were acts of negligence and were proximate causes of the death of James Hilton Ponder. There was a finding also that the collision was not the result of unavoidable accident, and another finding that Reece was operating the truck with the permission of appellant, Russell and his agents. The verdict also included a finding that the sum of $10,000 would reasonably compensate appellees for the actual pecuniary loss sustained by them in the death of their son. The jury's findings have sufficient support in the evidence.
Upon the verdict of the jury, the court entered judgment for the appellees against the appellant for the sum of $10,000. Appellant filed his motion for new trial, alleging among other things misconduct on the part of the jury during their deliberations upon special issues submitted to them by the court. The allegations in regard to misconduct of the jury are contained in subdivisions 41 and 42 of appellant's amended motion for a new trial. Such motion was verified by the following affidavit:
Upon the hearing of the amended motion for a new trial, Mr. W. L. Kemper, one of the attorneys representing the appellant, stated to the court that he was not going to argue all the assignments in the motion, and that he did not wish such action to be considered a waiver of such assignments. When this was assented to by opposing counsel, he thereupon stated he first wished to take up the various assignments alleging misconduct of the jury, and to offer testimony thereon. Counsel for appellees then objected to the consideration by the court of any assignments dealing with misconduct of the jury because: (1) There was no affidavit of any juror or other person attached to such motion disclosing the alleged misconduct, and (2) the motion did not contain any allegation showing any reason or excuse why such affidavits were not attached to such motion. The court sustained such objections. Appellant then tendered one Blanton as a witness on such motion. Appellees objected on the ground that there was no pleading by the appellant in such motion to support the admission of such testimony, and on the further ground that the motion did not disclose or apprise the court of the reason, or reasons, for which the motion was not supported by affidavit of any juror who participated in the trial. The objection was sustained by the court and counsel for appellant stated, on permission of the court, that he proposed to prove by the witness Blanton the following: "That the witness Blanton was not a juror but that after the verdict of the jury had been returned he interviewed the jury at the instance of the appellant; that the members of the jury declined to give any sworn or written statement...
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