Sears, Roebuck & Co. v. Jones

• Decision Date: 09 May 1957
• Docket Number: No. 3443,3443
• Citation: 303 S.W.2d 432
• Parties: SEARS, ROEBUCK AND COMPANY et al., Appellants, v. Sam S. JONES, Appellee.
• Court: Texas Court of Appeals

Page 432

303 S.W.2d 432

SEARS, ROEBUCK AND COMPANY et al., Appellants, v. Sam S. JONES, Appellee.

No. 3443.

Court of Civil Appeals of Texas, Waco.

May 9, 1957.

After Entry of Remittitur May 23, 1957.

Rehearing Denied June 6, 1957.

Thompson, Knight, Wright & Simmons, Pinkney Grissom, Timothy E. Kelley, David M. Kendall, Jr., Dalls, for appellants.

Carter, Gallagher, Jones & Magee, Dallas, Joe N. Chapman, Sulphur Springs, Ben T. Warder. Jr., Dallas, for appellee

HALE, Justice.

Appellee, Sam S. Jones, brought this action against Carl Anderson Truitt during his lifetime, and Sears, Roebuck & Company for damages, actual and exemplary, on account of personal injuries alleged to have resulted from a highway collision between two trucks. Appellee will hereafter be referred to sometimes as Jones, Carl Anderson Truitt will be referred to as Truitt, and Sears, Roebuck & Company as Sears. One of the trucks was being operated by Jones, and the other, owned by Sears, was being operated by Truitt, an employee of Sears. Truitt had been instructed to drive the truck of Sears from the latter's place of business in Dallas to Little Rock, Arkansas, his instructions being to depart from Dallas either at 12:00 midnight on January 29 or at 3:00 A.M. on January 30, 1954. Without additional specific instructions from anyone, although permissible under the rules of Sears to do so, Truitt took the truck several hours ahead of the time scheduled and left Dallas at approximately 7:00 P.M., headed towards Greenville. Somewhere in Dallas he stopped and purchased a pint or half pint of vodka, an intoxicating liquor. After leaving the Dallas city limits, he stopped to take a drink and then proceeded on to Greenville. As he was entering Greenville, he stopped at a cafe for a cup of coffee. After re-entering his truck, he drank more vodka. While driving into Greenville, his emergency brake caught on fire and it was necessary to call the fire department. From that point on Truitt could not remember anything that happened prior to and including the time of the collision.

Jones had driven his one and a half ton panel truck from Sulphur Springs to Dallas to deliver a load of cattle on the day before the collision occurred, and he was returning to his home through Greenville immediately before the time of the collision and was following the same route that Truitt was travelling prior to the time he stopped the Sears truck. In the vicinity of Rockwall, the weather became extremely foggy and it was difficult for Jones to see. He had to turn his headlghts down onto the low beam and could see probably no more than twenty-five feet, but at most, fifty feet ahead of him. He testified that he was driving at a speed of twenty to twenty-five miles per hour when suddenly he saw the truck stopped ahead of him. The collision ensued at about midnight and resulted in an almost total destruction of Jones' truck.

During the pendency of the suit, Truitt died and his wife, as administratrix of the estate of her deceased husband, hereinafter referred to as Mrs. Truitt, was substituted as a party defendant in lieu of the decedent. The case was tried before a jury, and on special issues answered favorably to Jones, judgment was rendered for him against Mrs. Truitt and Sears, jointly, for the sum of $52,111 as actual damages, and judgment was rendered against Mrs. Truitt, only, for the additional sum of $500 as exemplary damages. Mrs. Truitt and Sears, who will hereafter be referred to jointly as appellants, duly filed and presented their motion for new trial which was overruled, and hence this appeal.

Appellants say under the first point in their brief that the trial court erred in overruling their motion for continuance, based upon the absence of appellee at the time of trial. After both parties had announced ready, counsel for appellants were informed that appellee would not be present at any time during the trial. Thereupon, appellants filed their first motion for a continuance, in which they alleged that although appellee's deposition had been taken on two prior occasions, it had been taken only for discovery purposes. They alleged the facts which they proposed to establish by the testimony of appellee, the application being in substantial compliance with the requirements of Rule 252, TRCP. This record shows that appellants took the oral deposition of appellee on November 19, 1954 and again on September 21, 1955, and that the case came on for trial on May 7, 1956. The pleadings of appellee had been on file many months prior to the trial date, and appellants had been apprised of the fact that appellee was claiming that he had sustained a mental and nervous condition as a result of the accident involved in this case. On September 7, 1955, counsel for appellants took the oral deposition of Dr. Homer F. Bolding, a psychiatrist, who testified on the trial of this case that in his opinion Mr. Jones should not appear in court as a witness and should not even be present. Dr. Howard Sigler also testified that in his opinion if Mr. Jones appeared as a witness and subjected himself to cross examination, he might have a nervous breakdown.

It is well settled that the action of the trial court in denying an application for a continuance will not be disturbed on appeal unless the record discloses a clear abuse of discretion. Mitchell v. Mitchell, Tex.Civ.App., 233 S.W.2d 187; Motor Finance Co. of Texas v. Allen, Tex.Civ.App., 252 S.W.2d 1022 (er. ref. n. r. e.). In determining whether the trial court has abused its discretion in denying a motion for continuance, the alleged facts, along with the testimony taken on the trial of the case, should be considered together. Dallas Ry. & Term. Co. v. Durkee, Tex.Civ.App., 193 S.W.2d 222 and authorities. It appears that the facts which appellants stated in their motion for continuance they expected to prove by the testimony of appellee, could have been, and to a large extent actually were, established during the trial by the testimony of other witnesses.

We know of no rule of law by which either party to a civil suit may compel his adversary to attend the trial outside of the county where such adversary resides. Furthermore, we see no compelling reason in this case why appellee, or his attorneys, should have apprised their adversaries of the fact that the doctors for appellee had advised him not to attend the trial, or that appellee would or would not follow the professional advice so given to him by his doctors. Therefore, we cannot say the trial court abused the sound judicial discretion vested in him by overruling the motion of appellants for a continuance.

By the second point in their brief, appellants say the trial court erred in admitting into evidence the deposition testimony of appellee concerning the occurrence of the collision in question, in violation of Art. 3716 of Vernon's Tex.Civ.Stats., commonly known as the Dead Man's Statute. On the trial, appellee introduced in evidence his oral deposition which was taken pursuant to an agreement that any or all objections to any question or answer could be made at the time the deposition was offered, with the same force and effect as though the witness were personally present and testifying from the witness stand. When appellee offered his answer in evidence to the question 'Now, what's the first thing you saw that indicated to you there was going to be a collision?' counsel for appellants objected to the proffered answer on the ground that the same would be violative of the Dead Man's Statute. This objection was overruled, as was a subsequent objection going to all the questions and answers in the deposition of appellee with reference to the collision, and appellee was permitted to testify and did testify fully and in detail to the circumstances surrounding the collision. On February 16, 1954, the oral deposition of Truitt was taken and was introduced by appellants on the trial. In this deposition Truitt testified that he did not remember anything concerning the accident, as he was intoxicated, and the last thing her remembered was leaving Greenville. Mrs. Truitt testified tht her husband died about six months prior to the date of the trial.

Art. 3716, Vernon's Tex.Civ.Stats. provides: 'In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.' In their brief, appellants say: 'There being no facts showing any reason to disregard the specific provisions of Art. 3716, the admission by the trial court of the testimony of appellee as to the occurrence of the collision clearly was error which would require a remand of this case to the trial court for further proceedings in accordance with the law.' We cannot agree with this contention.

It is well settled that Art. 3716, Vernon's Tex.Civ.Stats., should be strictly construed. Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707; Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513. The object of this statute is to place the parties on a parity and to prevent one of them, to the detriment of the other, from taking an unfair advantage of the fact that the lips of the deceased have been sealed by death. 14 Tex.Jur. p. 319; Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298; Whatley v. Whatley, Tex.Civ.App., 169 S.W.2d 989 (er. ref.). We do not think the testimony of appellee concerning the circumstances surrounding the collision had the effect of giving him, to the detriment of appellants, an unfair advantage of the fact that the lips of Truitt had been closed by death. The lips of...