Solan & Billings v. Pasche

• Citation: 153 S.W. 672
• Court: Court of Appeals of Texas
• Decision Date: 17 January 1913
• Parties: SOLAN & BILLINGS v. PASCHE.

153 S.W. 672

SOLAN & BILLINGS v. PASCHE.

Court of Civil Appeals of Texas. El Paso.

January 17, 1913.

Rehearing Denied February 19, 1913.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by Henry Pasche against Solan & Billings. Judgment for plaintiff, and defendants appeal. Affirmed.

Hunt, Meyer & Teagle, of Houston, for appellants. John Lovejoy, Presley K. Ewing, and L. E. Blankenbecker, all of Houston, for appellee.

HIGGINS, J.

Appellee, while driving in a buggy on the Telephone Public Road in Harris county, on the night of August 28, 1910, had a collision with an automobile going in the opposite direction, owned by the appellants and driven by one Pres Lea. As a result of the collision, appellee was thrown from his buggy, sustaining serious injuries, and, upon trial, verdict and judgment in his favor was rendered in the sum of $5,000.

Error is first assigned to the refusal of a special charge requested by defendants "that, in passing on the question of the plaintiff's contributory negligence, you will look to all the testimony before you, and not confine yourselves to that offered by the defendants alone." Railway Co. v. Reed, 88 Tex. 447, 31 S. W. 1058, and Railway Co. v. Hill, 95 Tex. 630, 69 S. W. 136, are cited as holding the refusal of this charge to be error; but they cannot be so regarded. In the cases cited the jury had been instructed that the burden of proof was upon the defendant to establish its plea of contributory negligence when plaintiff's own evidence raised and presented the issue. This was held to be calculated to lead the jury to believe that they should consider alone the evidence offered by the defendant upon the issue, and therefore erroneous to refuse a special charge explicity directing the jury that it was their duty to consider all of the evidence before them, thus correcting the misleading tendency of the charge as given. In the instant case, the court did not instruct as to the burden of proof upon the issue of contributory negligence, nor does plaintiff's evidence raise the same, and the refusal of the charge therefore presents no error. Railway Co. v. Groves, 44 Tex. Civ. App. 63, 97 S. W. 1084. Furthermore, under rule 62a (149 S. W. x), the refusal of the charge would not be regarded as reversible error.

Special charge No. 2 requested by defendants was also properly refused. It reads as follows: "If you find from the evidence before you that Pres Lea was the person in charge of said automobile at the time of the collision with plaintiff's buggy and that said Lea was not the servant, agent, or employé of defendant Solan, then, if you so find, you will let your verdict be in favor of defendant Solan." In support of their contention that this charge should have been given, appellants submit the following proposition: "If Pres Lea had been placed in charge of the automobile by defendant Billings, the mere fact that the car was the property of the copartnership, or that Solan was riding in it, would not make Solan liable for Lea's negligence." This proposition in the abstract is undoubtedly correct, but the court in his general charge did not predicate Solan's liability for the negligence of Lea in the operation of the car upon the mere fact that the same belonged to the copartnership, or that Solan was riding in it. The general charge based the liability of both Solan and Billings for Lea's negligence upon the fact that the car was being driven and operated by Lea, and that in so doing he was acting under their authority and for their benefit and in their place and stead. Having thus submitted to the jury for its determination the very facts decisive of the agency relation, i. e., whether Lea was acting under the authority of and for the...