Studebaker Bros. Mfg. Co. v. Carter

• Citation: 111 S.W. 1086
• Parties: STUDEBAKER BROS. MFG. CO. v. CARTER et al.
• Decision Date: 13 June 1908
• Court: Court of Appeals of Texas

111 S.W. 1086

STUDEBAKER BROS. MFG. CO. v. CARTER et al.

Court of Civil Appeals of Texas.

June 13, 1908.

Rehearing Denied June 27, 1908.

Appeal from Dallas County Court; Hiram F. Liveley, Judge.

Action by C. F. Carter and others against the Studebaker Bros. Manufacturing Company and another. From a judgment for plaintiff against defendant Studebaker Bros. Manufacturing Company alone, and in favor of the other defendant, defendant Studebaker Company appeals. Reversed, and judgment rendered for said defendant.

Lewis & Phillips, for appellant. Flippin & McCormick, for appellees.

TALBOT, J.

This suit was brought in the county court of Dallas county by C. F. Carter, one of the appellees, against the appellant and the Pacific Express Company as a codefendant, to recover damages in the sum of $550 on account of the injury or destruction in the city of Dallas on October 3, 1906, of a carriage belonging to plaintiff, alleged to be worth the amount sought to be recovered.

In his original petition it was charged that prior to said date appellee had placed his carriage in the custody of the appellant for the purpose of having some repairing done to the upholstering thereof; that on said date appellant had caused the carriage to be pulled out of its warehouse, located on Pacific avenue, and left the same unguarded and unprotected for the purpose of having it transported to the place of business of the upholsterer, who was to do said repairing at the expense of appellant; that, while in that situation, a wagon belonging to the Pacific Express Company ran into and destroyed it; that the horse and wagon belonging to said express company were left standing on Pacific avenue, untied and without a weight attached to same, and for some cause unknown to plaintiff ran away, and, while running along said avenue without a driver or attendant, ran into and destroyed the carriage in question; and that by reason of the negligence of both defendants he had been damaged in the sum sued for. Appellant pleaded a general demurrer and general denial to plaintiff's petition, and specially denied that it was in any wise responsible for, or contributed to, the injury to said carriage, and further answered as follows: That when plaintiff delivered his carriage into its possession for the purpose of having the repairing done to it, he well knew that it did not possess facilities for such repairing in its own establishment, and that it would be compelled to have same done in some other establishment in the city of Dallas, and to that end it would be compelled to haul said carriage from its own premises to such establishment; that, on the date in question, for the purpose of having the carriage hauled from its premises to those of the carriage maker whom he had engaged to perform such repairs, it caused the carriage to be taken out of its warehouse on Pacific avenue in said city into said avenue, which was a public street, and placed immediately adjoining and close to the curb of the sidewalk in front of its warehouse preparatory to having it hauled to the establishment of said carriage maker; that while said carriage was so situated, and before appellant had any reasonable opportunity or time to move it, it was run into by an express wagon and horse of the Pacific Express Company, an occurrence that it did not anticipate, and could not have anticipated, when it placed the carriage as it did for said purpose, and for which it was in no wise responsible; that its entire action in the premises was in the exercise of all due and proper care and caution, and any injury done the carriage was in no wise due to failure on its part to use such care, but was due solely to the carriage being run into by the Pacific Express Company's wagon and horse. By way of cross-bill against the Pacific Express Company, appellant prayed that if any judgment should be rendered against it that it should have judgment for a like amount over and against said express company, alleging the circumstances of its custody of the carriage, and its situation at the time of the accident as above stated, and that if there was any liability in the premises it was due to and caused by the neglect of said express company in having left its horse standing in said street unattended, unhitched, and with no weight attached to him.

The Pacific Express Company answered by a general demurrer and general denial, and by way of special answer pleaded that no recovery should be had by the plaintiff for the reason that any injury or damage he had sustained in the premises was proximately caused and contributed to by him in that he had negligently permitted the carriage to be upon a public street in said city, unguarded and exposed, without any animal hitched thereto, and in violation of a city ordinance of the city of Dallas, and that such negligence caused or contributed to whatever damage the plaintiff had sustained in the premises. To the cross-bill of appellant it interposed a general demurrer and general denial. The case was tried before the court without a jury and resulted in a judgment in favor of the plaintiff against the appellant alone for the sum of $200, and that appellant should take nothing against the express company on its cross-bill. From this judgment appellant has duly prosecuted its appeal to this court.

Appellant's first assignment of error complains that the trial court erred in overruling its general demurrer to plaintiff's petition. In this action of the court we are...