Sunshine Bus Lines v. Craddock

• Decision Date: 03 December 1937
• Docket Number: No. 13630.,13630.
• Parties: SUNSHINE BUS LINES, Inc., v. CRADDOCK.
• Court: Texas Court of Appeals

Page 248

112 S.W.2d 248

SUNSHINE BUS LINES, Inc., v. CRADDOCK.

No. 13630.

Court of Civil Appeals of Texas. Fort Worth.

December 3, 1937.

Rehearing Denied January 14, 1938.

Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.

Suit by Irl (Jack) Craddock against the Sunshine Bus Lines, Inc., for injuries sustained by plaintiff and his wife and damages to automobile resulting from a collision. From an order denying defendant's application to set aside a default judgment for plaintiff and grant a new trial, the defendant appeals.

Reversed and remanded.

Thompson, Knight, Baker, Harris & Wright, Pinkney Grissom, and Rhodes S. Baker, Jr., all of Dallas, and A. A. Dawson, of Canton, for appellant.

Wynne & Wynne, of Wills Point, for appellee.

DUNKLIN, Chief Justice.

On August 25, 1936, Irl (Jack) Craddock instituted suit in the district court of Van Zandt county against the Sunshine Bus Lines, Inc., a corporation, to recover damages for personal injuries to himself and his wife and damages to his automobile, resulting from a collision between the automobile owned and driven by him at the time of the collision and in which he, with his wife and children, was traveling. On September 10, 1936, he recovered a judgment by default against the defendant for the sum of $15,400.

This appeal is by the defendant from the order of court denying its application to set aside that judgment and grant a new trial.

Two citations were issued on the day the suit was filed, returnable at the next regular term of court, beginning September 7, 1936. One of the citations was to Van Zandt county, and was served on defendant's agent in that county on the day it was issued, and the other to Kaufman county, and there served on August 26th by leaving a copy of the citation and certified copy of plaintiff's petition at defendant's place of business. And the judgment recites due service of those citations.

In plaintiff's petition, on which the judgment was rendered, it was alleged that on the 28th day of May, 1936, and while he was traveling on the highway in his Plymouth car, with his wife and two children, defendant's bus, which was traveling in the same direction, collided with his car, in its rear, resulting in serious personal injuries to himself and wife and damage to his car. He alleged that those injuries were proximately caused by the negligence of the defendant and its bus driver in the following particulars: The acts of the bus driver in driving the front end of the bus into the rear end of plaintiff's car; in driving the bus at a speed in excess of 45 miles per hour; in failing to sound any warning of the approach of the bus; in failing to stop the bus before it crashed into plaintiff's car; in crashing into plaintiff's car the second time, by reason of which plaintiff's car was upset and overturned. It was alleged that each of said acts of negligence of the bus driver was the proximate cause of the injuries to plaintiff and his wife, which were specified in the pleading, and that plaintiff was not guilty of any negligence contributing to such injuries. Plaintiff claimed damages in the sum of $50,000 for his injuries; $40,000 for injuries to his wife; and $450 for injuries to his automobile.

The findings of fact and conclusions of law filed by the trial judge show that the court sustained each and all the aforesaid allegations of negligence as the proximate cause of the injuries, for which damages were sought and same awarded as follows: $5,000 for injuries to plaintiff; $10,000 for injuries to plaintiff's wife, Mrs. Craddock; and $400 for injury to plaintiff's automobile; all aggregating $15,400.

On September 11, 1936, which was the next day following rendition of the judgment, the defendant filed its original motion to set aside the judgment and grant a new trial, alleging that its failure to file an answer to the suit was due to an accidental misplacement of the citations, and that it had a meritorious defense in that the accident did not result from any fault of the bus driver, but resulted from the act of plaintiff, in first pulling his car to the right off the pavement, and then quickly turning it to the left and against the fender of the passing bus. On September 25, 1936, the defendant filed an amended motion for new trial, elaborating allegations in its original motion, alleging facts to excuse its failure to file an answer before judgment, and also to show a meritorious defense to the suit, and the appeal is from a refusal of that motion. On September 26, 1936, defendant also filed an answer to plaintiff's petition, consisting of a general demurrer, a general denial, and a plea of negligence and contributory negligence of plaintiff.

There is no statement of facts in the record showing evidence offered when the judgment in question was rendered.

At the beginning of the hearing of appellant's motion to set aside the judgment, defendant's counsel in open court tendered "any and all expenses incident to the taking of the default judgment in this case, including payment to witnesses that had to be paid mileage and per diem, and any and all court expenses that were incurred by plaintiff in taking default judgment."

Following is a statement of the evidence introduced by appellant in support of allegations in its motion to set aside the judgment:

Affidavit of Perry Eddy, driver of defendant's bus at the time of the collision embodying statements as follows: The accident occurred at 12:15 o'clock a. m. of May 28, 1936; the bus was a passenger bus and the accident occurred in the Forney Bottoms just west of the town of Forney while he was making a trip from Dallas to Shreveport, La.; it was raining and the roads were slick. Just before the collision happened he was following plaintiff's Plymouth passenger car going in the same direction and was driving at a reasonable speed, possibly not over 35 miles per hour; the bus was not lighted on the inside, but on the front the lights were burning, and gave a good view of the road ahead; he decided to pass the Plymouth car, and when he sounded his horn the driver of the Plymouth drove it to the extreme right-hand side of the pavement and the front wheels seemed to go off the pavement on to the slick shoulder of the road. The driver then suddenly turned his car very sharply to the left onto the highway and against the right fender of the bus up near its front. Affiant stopped the bus within a short distance, and upon going back found that the Plymouth had turned over on the left-hand side of the highway. Affiant could see no reason for plaintiff to driver his car off the pavement to the shoulder of the road, since there was at least 10 feet of space on the highway for his car when the bus passed him.

Affidavit of A. W. Sessions stated that he witnessed the accident just before it happened; he was driving a truck following the bus; the bus sounded its horn; the Plymouth pulled over to the right and its rear wheels skidded off the pavement which was rounding and slick. When the front wheels of the bus got even with the rear wheels of the Plymouth, the driver of the Plymouth pulled to his left and struck the right fender of the bus which turned the Plymouth over on the left side of the highway.

Affidavit of Dr. L. R. Rhine, practicing in Tyler, who examined both plaintiff and his wife after their report of prior medical treatment in Forney: His examination of plaintiff Jack Craddock revealed "no evidence of injury except soreness over both lumbosacral areas. No evidence of bony injury. He was taped with adhesive and advised to use heat on his back." His examination of plaintiff's wife "revealed a sutured laceration three inches long extending from above the inner canthus of the right eye down below the inner canthus of the left eye. The left cheek is bruised and swollen. The right hand and the right knee is swollen and discolored, but not lacerated or fractured. The laceration is healing nicely and the soreness is rapidly disappearing from the bruised areas. She will have no permanent partial disability."

Testimony of B. L. Morrison, witness on stand: Defendant carried indemnity insurance with the Travelers Insurance Company, located in Dallas. He was employed by that company to supervise claims made against it; that company undertakes to defend lawsuits brought against holders of its policies of indemnity insurance involving accidents of the character involved here. When sued, the company sends the citations to Mr. Bradley, but if he is out of office the citation comes to the witness. The Travelers Insurance Company then furnishes the defense to the suit through Messrs. Thompson, Knight, Baker & Harris, its attorneys in Dallas. The citations with the accompanying copy of plaintiff's petition in this case came to his office in a letter on August 28, 1936, from John H. Awtry & Co., who wrote the insurance on the busses, and was placed on his desk by Miss Collins, an employee in his office. Following the usual custom, witness checked the citations and turned them and the letter back to Miss Collins, with instruction to bring them back to witness on the same day or the day following. On September 10, 1936, witness discovered he had overlooked the citation. Immediately, and about 3:30 o'clock of that day, he carried the citations and copy of the petition to the office of the firm of attorneys...