Tucker v. Newth

Decision Date24 November 1941
Docket NumberNo. 5359.,5359.
PartiesTUCKER v. NEWTH.
CourtTexas Court of Appeals

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Action by F. A. Newth, Jr., against L. O. Tucker for the market value of personal property destroyed by fire while being transported by defendant's truck and trailer, in which defendant filed a cross-action to recover damages for destruction of the truck and trailer by fire. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Darden & Burleson, of Waco, for appellant.

Storey & Donaghey, of Vernon, for appellee.

JACKSON, Chief Justice.

On October 16, 1940 and for some time prior thereto L. O. Tucker was engaged in operating trucks and trailers over the public highways of Texas and Oklahoma for the transportation of property for the public for hire.

On the date above mentioned he contracted with F. A. Newth, Jr., to transport certain described and itemized articles of property by truck from Vernon, Texas, to Granfield, Oklahoma, for a consideration of $15. The property was delivered in good condition and loaded on the truck and trailer by the employees of Mr. Newth and Mr. Tucker on the night of October 16, 1940 and accepted by Mr. Tucker, who agreed to convey it by truck from Vernon to Granfield. One Mr. Ferguson, who was the driver of the truck for Mr. Tucker, promptly after the loading left Vernon, Texas, with the truck, trailer and the goods for Granfield, Oklahoma. Two young men, one of whom was then, and the other had been employed by Newth, left on the truck with Ferguson and the freight. On the way from Vernon to Granfield the property of Mr. Newth together with the truck and trailer were entirely destroyed by fire the cause of which has not been ascertained.

On November 20, 1940 F. A. Newth, Jr., plaintiff, instituted this suit in the District Court of Wilbarger County against L. O. Tucker, defendant, to recover the market value of the property which he alleged to be $3,300.55. He pleaded that he delivered the property in good condition at Vernon, Texas, for transportation for compensation to Granfield, Oklahoma, by the defendant who negligently failed and refused to transport and deliver such goods at its destination; that the negligence of the defendant, the nature of which was unknown to plaintiff, resulted in plaintiff's loss and was a proximate cause of his damages.

The defendant answered by general demurrer, special exceptions, general denial and pleaded that he furnished the truck and driver for the transportation of the property; that it was loaded onto his truck by the agents of plaintiff who accompanied the truck load of freight and who were guilty of negligence that caused the truck and trailer and freight to be destroyed by fire. He alleged specifically that some of the goods were inflammable of which he was ignorant; that the inflammable goods were improperly loaded and that the agents of the plaintiff who were riding on the truck caused the ignition of such inflammable substance by striking matches to light cigarettes or cigars in proximity to the inflammable material loaded on the truck, which was negligence. By way of cross-action the defendant sought to recover damages in the sum of $2,130 for the value of his truck and trailer.

On special issues submitted by the court the jury found that the defendant's driver was guilty of negligence which was a proximate cause of the destruction of plaintiff's property by fire; that the reasonable cash market value of the goods so destroyed on October 16, 1940 was the sum of $1,269; that the destruction of the property by fire was not an unavoidable accident. On these findings the court rendered judgment that the plaintiff have and recover of and from the defendant the sum of $1,254 with interest from February 7, 1941 until paid at the rate of 6% per annum and costs, from which judgment this appeal is prosecuted.

The appellant assigns as error the action of the court in overruling his demurrer to appellee's allegations of negligence because such are too general, are conclusions, are vague, indefinite and speculative and because no specific acts of negligence are pleaded by appellee and appellant is not apprised thereby of the negligence relied on or the proof to be offered in support thereof.

The appellant also complains in a proper assignment of the refusal of the court to direct a verdict in his behalf because the evidence was insufficient under the pleadings to support the findings of the jury. These two assignments will be considered together.

The law is apparently settled that in a suit against a carrier for damages when a shipper has properly prepared the freight for shipment and delivered it to the...

To continue reading

Request your trial
2 cases
  • McKasson v. Zimmer Mfg. Co.
    • United States
    • United States Appellate Court of Illinois
    • June 8, 1973
    ...representation of the court's opinion to the jury, e.g., Sanchez v. Stremel, 95 Ariz. 392, 391 P.2d 557 (S.Ct. Ariz. 1964); Tucker v. Newth, 157 S.W.2d 1010 (Ct. of Civ.Apps. of Tex., 1941); McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633 (1929). We do not reach the question of the appropriate......
  • Herrin Transp. Co. v. Sheldon
    • United States
    • Texas Court of Appeals
    • March 15, 1948
    ...Texas & N. O. R. Co. v. Dingfelder & Balish, Inc., Tex.Civ.App., 114 S.W.2d 666, affirmed 134 Tex. 156, 133 S.W.2d 967; Tucker v. Newth, Tex.Civ.App., 157 S.W.2d 1010; Thompson v. Associated Growers of Brownsville, Tex.Civ.App., 162 S.W.2d 754. Since the appellant wholly failed to discharge......
2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Texas DTPA Forms & Practice
    • March 31, 2016
    ...§§5.01, 6.05 TUCCO, Inc. v. Burlington N. R. R.. Co. , 912 S.W.2d 311 (Tex. App.—Amarillo 1995, no writ), §8.01.8 Tucker v. Newth , 157 S.W.2d 1010 (Tex. Civ. App.—Amarillo 1941, writ ref’d), §10.23 Tumlinson v. San Antonio Brewing Association , 170 S.W.2d 620 (Tex. Civ. App.—San Antonio 19......
  • Trial: Part Two Court's Charge to Judgment
    • United States
    • James Publishing Practical Law Books Texas DTPA Forms & Practice
    • March 31, 2016
    ...argue that just because a question was submitted to the jury, the court has found some evidence to support a finding. Tucker v. Newth , 157 S.W.2d 1010 (Tex. Civ. App.—Amarillo 1941, writ ref’d). And, it is improper to attack the professionalism or ethics of opposing counsel in closing argu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT