West Texas Produce Co. v. Pate

• Decision Date: 13 October 1933
• Docket Number: No. 1161.,1161.
• Citation: 64 S.W.2d 381
• Parties: WEST TEXAS PRODUCE CO., Inc., et al. v. PATE.
• Court: Texas Court of Appeals

64 S.W.2d 381

WEST TEXAS PRODUCE CO., Inc., et al. v. PATE.

No. 1161.

Court of Civil Appeals of Texas. Eastland.

October 13, 1933.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit by Sallie T. Pate against the West Texas Produce Company, Inc., and another. From a judgment in favor of the plaintiff, the defendants appeal.

Reversed and cause remanded.

Cox & Hayden, of Abilene, for appellants.

Coombes & Andrews, of Stamford, for appellee.

HICKMAN, Chief Justice.

The appeal is from a judgment in favor of appellee, Mrs. Sallie T. Pate, a feme sole, against appellant West Texas Produce Company, Inc., and L. A. Gustafson for $1,000 damages for personal injuries sustained by appellee in an alleged collision between a car driven by her and a truck belonging to Gustafson.

Mrs. Pate, together with Mrs. B. D. Cole and Miss Jessie Garth, took about fourteen children, members of a Sunday School class taught by Mrs. Pate, out picnicking. The accident occurred about 8:30 o'clock in the evening on the return from the picnic grounds. Mrs. Pate and Mrs. Cole were riding in a small coupé. Attached to the left bumper of this coupé was a four wheel trailer, upon which the children and Miss Garth were riding. In ascending a grade on the highway the motor of the coupé stalled, and it was while the coupé and trailer were standing on the highway that the accident occurred. The trailer was so attached that it extended eighteen inches further to the left than the coupé. The truck, which was alleged to have collided with the car and caused injuries to Mrs. Pate, was proceeding on the highway in the opposite direction to that in which the picnic party was headed. The grounds of negligence relied on in appellee's petition were pleaded in this language:

"That the defendant, West Texas Produce Co., Inc., through its servant, agent or employee L. A. Gustafson, and the defendant, L. A. Gustafson, were negligent in the operation of said truck in driving it at a high rate of speed at the time and place where said truck ran into plaintiff's car and were negligent in driving said truck on the wrong side of said pavement so that the wheels on the left side of said truck were over on the left or North side of the center line of said pavement; that the lights were turned on on plaintiff's car and the lights were turned on on said truck; that defendant, West Texas Produce Co., Inc., through its servant, agent or employee and the defendant, L. A. Gustafson, were willfully and grossly negligent in operating said truck immediately preceding and at the time of said accident, and by the exercise of ordinary care could have and should have seen the lights on plaintiff's car and could have and should have heard plaintiff's horn honking and could have and should have seen plaintiff waving her arm, and could have and should have known that plaintiff's car was stalled or stopped on said pavement and that plaintiff had no opportunity of getting off of the pavement out of his way, and if said agent, servant or employee of the defendant, West Texas Produce Co., Inc., and the defendant L. A. Gustafson, had driven said truck, which was a very large, heavy truck, at a reasonable rate of speed and on the right or South side of said pavement he would not have struck the car belonging to plaintiff or the trailer attached thereto, and if said servant, agent or employee of West Texas Produce Co., Inc., and the said L. A. Gustafson, had slowed down the speed of the truck and pulled said truck over on his right side or the South side of said pavement after plaintiff began honking her horn and waving her arm he would not have struck plaintiff's car; but that in total disregard of the safety of plaintiff and her companions or of any other person who might be at said point on said Highway, defendant, West Texas Produce Co., Inc., through its servant, agent or employee, and the defendant, L. A. Gustafson, drove said truck on the left or North side of said pavement at a high rate of speed which plaintiff alleges to be more than forty miles per hour, and that after he could have and should have seen plaintiff's car and the lights thereon and could have and should have heard the honk of plaintiff's horn and could and should have seen plaintiff waving her hand, he continued to negligently and carelessly drive said truck on the wrong side of said pavement and at a high rate of speed in total disregard of the safety of plaintiff and her companions."

As we construe this pleading, two grounds of negligence were alleged, namely, (1) that the truck was being driven at a high rate of speed, and (2) that same was on the wrong side of the pavement in that its left wheels were on the left of the center line thereof.

The facts in the record are very meager with reference to the relation between Gustafson, the owner of the truck, and West Texas Produce Company. About all that is disclosed thereby is that Gustafson worked for the produce company as a salesman and truck driver; that he made the towns of Lueders, Stamford, Haskell, Weinert, and Munday. He usually made four trips per week to these towns, starting from Cisco and returning on the same day that he left. The nature of his contract with the produce company is not disclosed. The truck belonged to Gustafson, but was used by him in connection with his employment by the produce company. On the occasion of the accident, a negro named Charlie Brown was driving the truck. Brown lived in Gustafson's servant house at Cisco. He was riding with Gustafson on the occasion and was permitted to drive the truck. He was not employed by Gustafson and, so far as the record discloses, had no connection whatever with the produce company.

The issue of negligence with reference to the speed of the truck was submitted in this manner: "Special Issue No. 4. Was the driver of the truck driving it in excess of 15 miles per hour at the time he reached a point opposite plaintiff's car?" To which the jury answered "Yes." The fifth special issue was as follows: "Was the act of the driver of the truck in driving it in excess of 15 miles per hour at the time he reached a point opposite plaintiff's car, if he did so drive it, a proximate cause of the plaintiff's injuries, if any?" To which the jury answered "Yes." It will be observed that no issue was submitted to the jury as to whether it was negligence to drive the truck in excess of fifteen miles per hour. The court evidently regarded the answer to special issue No. 4 as a finding of negligence per se. Article 794 of the Penal Code of 1925 provides...