Sturtevant v. Pagel

• Decision Date: 18 August 1937
• Docket Number: No. 10092.,10092.
• Parties: STURTEVANT et al. v. PAGEL et ux.
• Court: Texas Court of Appeals

109 S.W.2d 556

STURTEVANT et al. v. PAGEL et ux.

No. 10092.

Court of Civil Appeals of Texas. San Antonio.

August 18, 1937.

Rehearing Denied November 3, 1937.

Appeal from Thirty-Seventh District Court, Bexar County; Harry L. Howard, Judge.

Action by E. H. Pagel and wife against Charles G. Sturtevant, Sr., and another. Judgment for plaintiffs, and defendants appeal.

Affirmed in part, and reversed and remanded in part.

Russell & Beaucaire and Max H. Wier, all of San Antonio, for appellants.

Marshall O. Bell and Carter & Lewis, all of San Antonio, for appellee.

MURRAY, Justice.

On the night of August 16, 1935, between the hours of 12 and 1 o'clock a. m., Selma Pagel was injured in an automobile collision at the corner of Hildebrand and McCollough avenues in the city of San Antonio. The car in which Selma Pagel was riding was being driven by Clifford Wade, and the other car was being driven by A. A. Snyder, Jr. This car belonged to C. G. Sturtevant, Sr. The automobile had been taken out on the night in question by C. G. Sturtevant, Jr., a minor. We will hereafter refer to Charles G. Sturtevant, Sr., as Senior, and Charles G. Sturtevant, Jr., as Junior.

Selma Pagel died as a result of the injuries which she received in the accident, and her father and mother, E. H. Pagel and Matilda Pagel, instituted this suit against Senior, Junior, and A. A. Snyder, Jr., seeking to recover for damages suffered by them as a result of their daughter's death. The case was tried to a jury, who found in answer to the special issues propounded to them as follows: That Senior permitted his son, Junior, to use the car on the occasion in question; that the automobile belonging to Senior was being operated on the occasion in question without adequate brakes in good working order; that Senior was negligent in permitting his son, Junior, on the occasion in question, to use the automobile without adequate brakes in good working order; that such negligence was a proximate cause of the death of Selma Pagel; that Senior entrusted to his son, Junior, the matter of attending to the servicing and making adjustments on said automobile as his agent; that Junior failed to use ordinary care in having the brakes on the car serviced and adjusted; that his negligence was a proximate cause of the death of Selma Pagel; that the speed at which A. A. Snyder, Jr., was operating the car on the occasion in question was a proximate cause of the death of Selma Pagel; that the failure of Junior to warn Snyder to operate the car at a lower rate of speed was negligence, and that his negligence was a proximate cause of the collision in question and the death of Selma Pagel; that upon the occasion in question Junior did not take his father's automobile in violation of his father's instructions. All issues with reference to contributory negligence and sole proximate cause were answered favorably to plaintiff. The jury further found that the sum of $5,000 would be a reasonable compensation to plaintiffs for the pecuniary loss sustained by them as the direct result of the death of their daughter, Selma Pagel. Accordingly judgment was rendered by the trial court in favor of plaintiffs below, and from this judgment C. G. Sturtevant, Sr., individually and as guardian ad litem for C. G. Sturtevant, Jr., has prosecuted this appeal.

There is a great deal of discussion in appellants' brief as to the so-called family purpose doctrine, which it is now definitely held does not apply in Texas. See Bluth v. Neeson, 127 Tex. 462, 94 S.W.(2d) 407; Trice v. Bridgewater, 125 Tex. 75, 81 S.W.(2d) 63, 100 A.L.R. 1014; Fernandez v. Lewis (Tex.Civ.App.) 92 S.W.(2d) 305 (writ dismissed). Appellees have stated that no recovery is sought in this case upon the family purpose doctrine, and hence it becomes unnecessary to discuss any propositions in reference to such doctrine. The theory upon which appellees seek to support the judgment herein is that the brakes on the Sturtevant car were not adequate to stop the car and control its speed; that this fact was known, or should have been known, to Sturtevant, Sr.; that Senior permitted Junior to use the car on the night of the accident, and that under such circumstances he was guilty of negligence; that the inadequate brakes on the car were a proximate cause of the death of Selma Pagel, and that, while Snyder was actually driving the car at the time of the collision, Junior was riding in the car, and thereby using it, and that the fact that Junior was not seated at the wheel at the time of the collision is unimportant under the circumstances.

We are of the opinion that, if the owner of the car knows, or should know by the use of ordinary diligence, that the brakes on his car are in bad working order, and are inadequate to stop and control the speed of the car, and he permits another to use such car upon the public highways and streets, he would be liable for all damages resulting from the use of such car due to the inadequacy of the brakes. 42 Corpus Juris 897; 5 Tex.Jurisprudence, pp. 755-758; Texas Company v. Veloz (Tex.Civ.App.) 162 S.W. 377; Co-operative Furniture Company v. Southern Surety Company (Tex.Civ.App.) 264 S.W. 201; article 799, Penal Code 1925, and article 827a, § 9, Vernon's Ann.P.C.; Tannahill v. Gas Company, 110 Kan. 254, 203 P. 909; Rocha v. Garcia, 203 Cal. 167, 263 P. 238; Foster v. Farra, 117 Or. 286, 243 P. 778; Hinsch v. Amirkanian, 145 A. 232, 7 N.J.Misc. 274; Donovan v. Garvas, 121 Misc. 24, 200 N.Y.S. 253.

Appellants contend that there is no evidence that Junior was using the automobile on the night of the accident with the consent or permission of Senior. Appellants in their statement set forth...