Strickland Transp. Co. v. Ingram, 7731
| Decision Date | 26 April 1966 |
| Docket Number | No. 7731,7731 |
| Citation | 403 S.W.2d 192 |
| Parties | STRICKLAND TRANSPORTATION CO., Inc., Appellant, v. Hawkins INGRAM et al., Appellees. . Texarkana |
| Court | Texas Court of Appeals |
Neal A. Hawthorn, Kenley & Boyland, Longview, for appellant.
Fred Whitaker, Carthage, for appellee.
This is a venue case. At the conclusion of a plea of privilege hearing the trial judge ruled that Subdivision 9a, Article 1995, Vernon's Ann.Tex.Civ.St., authorized trial in Panola County of this, an automobile collision case. The trial court judgment overruling the plea of privilege is affirmed.
One of the venue facts, and the only one at issue in this appeal, is whether or not there is evidence that the driver of the truck figuring in the collision was at the time of the occurrence a servant, agent or representative of appellant, Strickland Transportation Company, Inc., and acting within the scope of his employment. For proof of this vital element of venue the appellees rely upon a presumption of such facts arising when ownership of the vehicle was proven to be in appellant, Strickland Transportation Company, Inc. The appellant's basic complaint is that there is no probative evidence that appellant owned the truck.
The evidence pertaining to this venue fact is brief. The quotation below from the testimony of Hawkins Ingram, one of the appellees, is all of the proof touching upon the fact. The statement of facts contains this, to-wit:
'Q. You didn't see anything. Now then, did you know how many drivers there were in that truck?
A. No, sir.
Q. Did you later learn through the highway department, the Sheriff's Office, that there was one or two drivers?
A. Yes, sir.
Q. How many drivers were there?
A. Two.
Q. All right. Did you later know that the drivers were Claude A. Wolverton and H. B. Beavers?
A. Yes, sir.
Q. Did you later learn that the truck was owned by the defendant, Strickland Transport Company, Incorporated of Dallas, Texas?
A. Yes, sir.
Q. Did you receive any injuries from this accident?
A. Yes, sir.
Q. Were you dazed or knocked unconscious in any way at the time?
A. Yes, sir.
Q. Just tell the Court briefly now, we don't want to go into that, except just to show the injuries?
A. Well, at the time I was knocked almost unconscious, I wasn't aware of everything that went on around me, but I was transferred from the scene of the accident to the hospital, Panola General Hospital'.
No objection was made to the admission of this testimony. The parties' briefs make it known that a misunderstanding caused counsel for appellant to be absent from the hearing when this testimony was adduced; but revision is not sought on that account.
Article 1436--1, § 4, Vernon's Ann.P.C. defines the owner of a motor vehicle for the purposes of the Certificate of Title Act; but the statutory definition is not a comprehensive pronouncement applicable under all circumstances. Pioneer Mut. Compensation Co. v . Diaz, 142 Tex. 184, 177 S.W.2d 202 (Comm.App. op. adpt). The owner of tangible personal property, such as a truck, is defined in 73 C.J.S. Property § 13, p. 181 in this language.
For the purposes of this common law tort action the owner of the truck may be satisfactorily defined as a person or entity claiming ownership and having possession or exercising control over it. See Pioneer Mutual Compensation Company v. Diaz, supra; Realty Trust Co. v. Craddock, 131 Tex. 88, 112 S.W.2d 440. Manifestations of ownership appear to be capable of perception by the senses of a witness, that is, many cases hold a witness may testify directly as to ownership. See Campbell v. Peacock (Tex.Civ.App.1915) 176 S.W. 774, no writ; Evidence, 20 Am.Jur. 644 § 772.
Perception of fact by the senses of the witness, that is, firsthand knowledge, is a fundamental qualification of testimonial competency. The origin and viability of this qualification is found in the law's requirement that the most reliable information underlie court decisions. 1 Texas Law of Evidence 578, § 793; McCormick on Evidence 19, § 10; Evidence, 20 Am .Juris. 634, § 765, and 97 C.J.S. Witnesses §§ 52 and 53. Of course there are exceptions to this general rule, as well established as the rule itself, but enumeration of such exceptions will serve no purpose at this point.
The intransitory verb 'learn' used in Hawkins Ingram's testimony relative to ownership of the truck, according to the Century Dictionary and Encyclopedia, means 'To acquire or receive knowledge, information or intelligence; * * *'. This definition gives the word a twofold, and for the purpose of this inquiry, an ambiguous meaning . It means both to receive knowledge and to receive information; which might be through the senses in the first instance and a hearsay statement in the other. The effort here is to determine whether Hawkins Ingram's knowledge of the ownership of the truck was the result of facts perceptible to him, or is based on statements to him by persons in nowise connected with ownership. If his knowledge was acquired from facts perceptible to him, his testimony would have probative force, but if he was informed of the ownership by statements of third persons, his testimony is hearsay and of no probative value. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912); 'Incompetent Evidence Admitted Without Objection' (Tom McLeroy), 21 Texas Law Review 778.
The qualifying factor in Hawkins Ingram's testimony that he Later learned, that is, learned after the collision occurred, that Strickland Transportation Company, Inc., owned the truck at the time of collision confins the opportunity he had of gaining first hand knowledge of ownership to a time subsequent to collision. But this does not necessarily exclude acquisition of such knowledge. A witness may testify in accordance with his knowledge at the time his testimony is offered; he is not...
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...an accident or crime. See Cleveland Terminal & Valley R.R. v. Marsh, 58 N.E. 821, 822 (Ohio 1900); Strickland Transp. Co. v. Ingram, 403 S.W.2d 192, 195 (Tex. App. 1966) ("A witness may testify in accordance with his knowledge at the time his testimony is offered; he is not restricted to hi......
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