Texas Co. v. Veloz

• Citation: 162 S.W. 377
• Parties: TEXAS CO. v. VELOZ.
• Decision Date: 29 May 1913
• Court: Texas Court of Appeals

162 S.W. 377

TEXAS CO. v. VELOZ.

Court of Civil Appeals of Texas. El Paso.

May 29, 1913.

On Rehearing, December 18, 1913.

Appeal from El Paso County Court; A. S. Eylar, Judge.

Action by Guadalupe Veloz against the Texas Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Peyton F. Edwards and O. L. Bowen, both of El Paso, for appellant. John T. Hill, of El Paso, for appellee.

HIGGINS, J.

Appellee, while driving upon the public road, had a collision with an automobile owned by appellant and driven by one Francisco Marcias. The automobile was in a bad state of repair, and Wells Littlefield, agent of appellant, had delivered the automobile to Marcias, who was driving the same to the city of El Paso, where it was to be repaired.

The issue is raised as to whether or not Marcias was the employé of appellant in so driving the car, or the employé and agent of one Stafford, with whom Littlefield, acting for appellant, had contracted for the repair of the machine. In the first count in the petition it is alleged that in driving the car Marcias was acting as the employé of appellant; and in the second count it is averred that, if he was not the employé of appellant, then that appellant, acting through its agent, Littlefield, had delivered the automobile to Marcias or Stafford with full knowledge of the fact that the same was in bad repair, in that the tires had been punctured, and because the same was unmanageable due to a defect in the carbureter and steering gear. That appellant knew of the danger to the traveling public incident to the operation of said machine in its defective condition upon the public road, and that it was negligence upon the part of appellant to permit Marcias to drive said machine upon the road.

The first assignment of error complains of the action of the trial court in overruling a general demurrer to the second count, and in support of the assignment two propositions are urged: First, that an automobile out of repair is not, per se, a dangerous instrumentality, and second, the owner is not liable in damages for injuries to third persons, when the agency causing the damage is not, per se, dangerous, and is being operated by one not the servant of the owner. As abstract propositions of law we may assume both these contentions to be correct. The mere fact that an automobile is in a bad state of repair certainly does not render it a dangerous instrumentality, but this was not the case made by the petition. The petition, in addition to stating that the car was in a bad state of repair, averred that this condition rendered it unmanageable and uncontrollable, and caused the same to run at a rapid and excessive rate of speed, and it occurs to us that a car in such a condition that its speed cannot be regulated and its course controlled is one of the most dangerous instrumentalities that could be placed upon the public highway. This being the case made by the second count in the petition, we overrule the first assignment.

The remaining assignments cannot be considered. They do not comply with that provision of rule 25 which requires that they refer to that portion of the motion for new trial in which the error is complained of. Railway Co. v. Ledbetter, 153 S. W. 646; Nunn v. Veale, 149 S. W. 758; Murphy v. Earl, 150 S. W. 486; Tiefel v. Maxwell, 154 S. W. 319; Railway Co. v. Gray, 154 S. W. 229; Imperial Irrigation Co. v. McKenzie, 157 S. W. 751; and Konz v. Henson, 156 S. W. 593; the last two cited cases recently decided by this court and not yet reported.

Affirmed.

McKENZIE, J., did not sit in this case.

On Rehearing.

The Supreme Court granted a writ of error in the case of El Paso Electric Railway Co. v. Lee, 157 S. W. 748, thus indicating its disapproval of the holding of this court that amended rule 25 (142 S. W. xii) requires that assignments of error shall refer to that portion of the motion for a new trial, where the error was complained of. It therefore becomes our duty to pass upon the assignments which were not considered and passed upon in the original opinion.

On the date of the accident, Wells Littlefield, agent of the appellant, had driven in an automobile belonging to appellant, and upon its business, to Ysleta, about 12 miles distant from El Paso, Tex., and upon the return trip, when a short distance from Ysleta, he had a blow-out in the tire on one of the rear wheels of the car. Littlefield, being unable to repair same, phoned J. R. Stafford, a repairman, to come and repair the blow-out. Stafford came, bringing with him his employé, Francisco Marcias. Stafford and Marcias repaired the blow-out, and Littlefield again started for El Paso in the car. After going a short distance, another blow-out occurred which Stafford was unable to repair, and it became necessary...