Thurman v. Chandler

• Decision Date: 03 April 1935
• Docket Number: No. 1836-6364.,1836-6364.
• Citation: Thurman v. Chandler, 81 S.W.2d 489, 125 Tex. 34 (Tex. 1935)
• Parties: THURMAN et al. v. CHANDLER et al.
• Court: Texas Supreme Court

81 S.W.2d 489

THURMAN et al. v.CHANDLER et al.

No. 1836-6364.

Commission of Appeals of Texas, Section A.

April 3, 1935.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Mrs. J. Henry Chandler for herself and as next friend of Marion Chandler and another against H. C. Thurman and another. To review a judgment of the Court of Civil Appeals [52 S.W.(2d) 315], which affirmed a judgment in favor of plaintiffs, defendants bring error.

Reversed and remanded for a new trial.

George P. Willis, of El Campo, and Baker, Botts, Andrews & Wharton, Tom Scurry, and A. P. Jones, all of Houston, for plaintiffs in error.

Sidney P. Chandler, of Corpus Christi, for defendants in error.

C. A. Leddy and Fulbright, Crooker & Freeman, all of Houston, amici curiæ.

CRITZ, Commissioner.

This suit was filed in the district court of Wharton county, Tex., by Mrs. J. Henry Chandler, widow of J. Henry Chandler, deceased, for herself and as next friend of Marion and Dorothy Chandler, minor children of Mrs. Chandler and her said deceased husband, against H. C. Thurman and Hartford Accident & Indemnity Company to recover damages for the accidental death of J. Henry Chandler.It is alleged that Mr. Chandler's death was occasioned by the negligence of Thurman in operating a truck on a public highway in this state.Liability of the indemnity company was predicated on the fact that it was Chandler's truck insurer under section 13 of article 911b, Vernon's Ann. Civ. St. (volume 2).The case was tried in the district court with the aid of a jury.Based on the court's interpretation of the jury's answers to the special issues submitted, judgment was entered for the Chandlers against Thurman for $6,000.This judgment was apportioned $1,000 to Mrs. Chandler and $2,500 each to the Chandler children.Judgment was also entered against the indemnity company in favor of the Chandlers for $5,000.That was the amount of its policy.Thurman and the indemnity company appealed to the Court of Civil Appeals at Galveston, and on final hearing in that court the judgment of the district court was in all things affirmed.52 S.W.(2d) 315.Thurman and the insurance company bring error.

From the finding of the jury and the record construed in its most favorable light for the Chandlers, we conclude the following facts:

About 8 o'clock p. m. on August 11, 1930, H. C. Thurman, the duly licensed owner of this truck, J. Henry Chandler, Mrs. H. C. Thurman, Miss Evelyn Madden, A. J. Overman, Marvin Overman, and a party whose name does not appear in the record, left El Campo, Tex., to go in Thurman's truck to Edna, Tex., a few miles away.The purpose of the trip was to pick up a load of baled cotton to be transported on the truck from Edna, Tex., to Houston, Tex., back through El Campo.The truck was a six-wheel affair; that is, the truck had four wheels and a trailer with two wheels.The trip was made to Edna, where the truck was loaded with 20 bales of cotton.After the truck was loaded, and on the same night of August 11, 1930, the return trip to El Campo began.

On the return trip H. C. Thurman was driving, and of course sat on the driver's seat in the cab on the left side under the steering wheel.A. J. Overman sat in the cab in the center of the seat next to Thurman.The unnamed party sat in the cab at the right of A. J. Overman.It is thus seen that on the return trip in the night three of the seven parties rode inside of the truck cab on the seat.

It further appears that on this return trip Marvin Overman stood on the left running board of the truck.J. Henry Chandler stood on the right running board.At this point we understand that the cab windows were down and the two parties riding on the running boards held to certain upright parts of the cab, and rode with their heads inside at least part of the time.It also appears that on this return trip the two ladies above mentioned rode on the front fenders of the truck.

While the truck was being driven along the paved public state highway from Edna, Tex., to El Campo, Tex., J. Henry Chandler was thrown from, or fell off of, the running board on which he was riding, and, while he was lying on the road, a bale of cotton fell off the truck across and on his legs and pelvis, causing injuries from which he shortly thereafter died.It is shown that the right rear wheel of the truck trailer came off and the injury and subsequent death of J. Henry Chandler can be attributed to that circumstance.

In response to special issues submitted to them by the trial court, the jury found: (a) That Chandler's injury was not the result of an unavoidable accident; (b) that H. C. Thurman knew of the defective condition of the right wheel of the truck trailer which came off, or by the exercise of ordinary care could have known thereof; (c) that H. C Thurman was guilty of negligence in driving the truck with such defective right rear wheel; (d) that H. C. Thurman was negligent in the rate of speed at which he operated the truck at the time of this accident; (e) that the above acts of negligence on Thurman's part were proximate causes of Chandler's injuries.

The jury also found the amount of plaintiffs' damages and apportioned them.

In addition to the above, the jury further found: (a) That J. Henry Chandler, at the time of his injury, was the invited guest of H. C. Thurman; (b) that J. Henry Chandler was guilty of negligence in riding on the running board of the truck, but that such negligence was not the proximate cause of his injury; (c) that J. Henry Chandler did not of his own free will, and voluntarily, jump off the running board of the truck; (d) that J. Henry Chandler, with knowledge of the speed at which the truck was being driven, failed to warn or protest to H. C. Thurman against such speed, but that such failure was not negligence on the part of Chandler; (e) that Chandler was guilty of negligence in continuing to ride on the running board of the truck at the rate of speed at which it was being driven, but that such negligence was not the proximate cause of his injuries; (f) that J. Henry Chandler could not have held to a place or places on the truck by the exercise of ordinary care.

As already shown, the trial court submitted the issue of unavoidable accident to the jury.In so doing he placed the burden of proof on the defendants.Defendants excepted to the charge on that account.It is error to place the burden of proof on the defendant in submitting the issue of unavoidable accident.Rosenthal Dry Goods Co. v. Hillebrandt(Tex. Com. App.)7 S.W.(2d) 521.

As we interpret its opinion, the Court of Civil Appeals holds that the above charge was error in the form submitted, but that such error was harmless, because the issue of unavoidable accident was not raised by the evidence.We think the evidence does raise the issue.

...