Texas News Co. v. Lake, 9848.

• Decision Date: 28 March 1933
• Docket Number: No. 9848.,9848.
• Parties: TEXAS NEWS CO. et al. v. LAKE et al.
• Court: Texas Court of Appeals

58 S.W.2d 1044

TEXAS NEWS CO. et al. v. LAKE et al.

No. 9848.

Court of Civil Appeals of Texas. Galveston.

March 28, 1933.

Rehearing Denied April 20, 1933.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by Anna R. Lake and husband against the Texas News Company and another. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered.

John F. Battaile, of Houston, for appellants.

Hart & Stiglich and Geo. P. Prendergast, all of Galveston, for appellees.

LANE, Justice.

This suit was brought by Anna R. Lake, joined by her husband, C. W. Lake, against Texas News Company and Home Indemnity Company of New York, to recover damages suffered by her by reason of alleged negligence of an agent of Texas News Company in the operation of an automobile truck owned by said news company.

Plaintiffs alleged that the Texas News Company's agent and servant in charge of and driving a truck owned by such News Company, in the course of his employment carelessly and negligently drove said truck against an automobile owned by plaintiffs in which Mrs. Lake was sitting, and by reason thereof the plaintiffs' automobile was completely demolished and Mrs. Lake seriously injured, causing her to suffer both mental and physical pain and agony, to her damage in the sum of $20,000; that by reason of the collision resulting in the injuries to Mrs. Lake and to plaintiffs' automobile, plaintiffs "have been compelled to employ extra help, medical service and nurses, and expend a large amount for medicine, bandages, etc., and for these items, together with replacing and repairing damages to her clothing and their automobile," plaintiffs have expended the sum of $400.

The Home Indemnity Company was made a party defendant by reason of the fact that it had issued to the Texas News Company a policy for the benefit of such company and all persons killed or injured by the company's truck.

Texas News Company answered by general demurrer, general denial, and a special plea of contributory negligence.

The indemnity company answered by pleas in abatement and special exceptions, all of which were overruled by the court. It also denied generally the allegations of the plaintiffs' petition.

The cause was tried before a jury, and at the close of the evidence defendants requested the court to instruct a verdict in their favor, which was refused.

The cause was then submitted to the jury upon special issues, in answer to which the jury found: That at the time of the collision in question Earl Belanger, agent of Texas News Company, was in the performance of an errand or duty of his employer; that at such time he was driving defendant's truck at a greater rate of speed than 20 miles per hour; that in driving the truck at such speed he was guilty of negligence; and that such negligence was a proximate cause of the collision and the injuries to the plaintiff.

There were other issues relative to negligence submitted, all of which were answered favorably to the plaintiffs.

The jury found that $1,000, if paid in cash, will reasonably and fairly compensate plaintiffs for the injuries complained of.

Upon the verdict of the jury judgment was rendered for the plaintiffs against the defendants, jointly and severally, for the sum of $1,000, and from such judgment both defendants have appealed.

For reversal of the judgment appellants insist (1) that the court erred in overruling their request for an instructed verdict in their favor, in that the uncontradicted undisputed evidence shows that at the time of the collision in question Earl Belanger, servant of Texas News Company, was using the truck in question on an errand purely his own; that the only evidence adduced shows that the driver of the truck, at the time of the collision, was on an errand purely his own; (2) that the finding of the jury, that at the time of the collision the truck was being driven by the servant in performance of an errand or duty of his employer, is so against the great weight and preponderance of the evidence as to be wholly wrong.

Upon such contentions appellants pray for a reversal of the judgment and for a rendition of judgment in their favor by this court, but in the event this prayer is not sustained, they pray for a reversal of the judgment and a remand of the cause.

We agree with appellants' contention that the court erred in refusing their request for an instructed verdict in their favor.

It has been held that proof of the ownership of a truck or car causing an accident, and additional proof that at the time of the accident such truck or car was being operated by one who was in the employ of the owner, makes out a prima facie case against the owner, such holding being based on a presumption that at the time and place of the accident such truck or car was being operated on behalf and for the master, the owner thereof. Studebaker Bros. Co. v. Kitts (Tex. Civ. App.) 152 S. W. 464, 467. In this case the plaintiffs' right of recovery, if any, must depend alone upon the force of the legal presumption above mentioned, because there is no evidence showing that the mission of the operator of the truck in question at the time of the accident was one for the master, the owner of such truck.

"Such presumption does not rest on an inference of fact. The fact of ownership from which the presumption arises is not regarded as any evidence of the fact presumed, but the presumption is a mere rule of procedure, and is put to flight by an unequivocal showing on the part of the owner that the car was not driven by him, nor by his servant acting within the scope of his employment. Bond v. St. Louis-San Francisco R. Co., 315 Mo. 987, 288 S. W. 777." Murphy v. Tumbrink (Mo. App.) 25 S.W.(2d) 133, 134.

The undisputed testimony of all the witnesses relative to such question negatives such conclusion.

The plaintiff called as a witness the defendant's truck driver, Earl Belanger, who...