Western Cotton Oil Co. v. Mayes

• Decision Date: 12 October 1951
• Citation: 245 S.W.2d 280
• Parties: WESTERN COTTON OIL CO. v. MAYES et al. No 2895.
• Court: Texas Court of Appeals

Page 280

245 S.W.2d 280

WESTERN COTTON OIL CO. v. MAYES et al.

No 2895.

Court of Civil Appeals of Texas, Eastland.

Oct. 12, 1951.

Rehearing Granted Dec. 14, 1951.

Further Rehearing Denied Jan. 18, 1952.

James Little, Big Spring, for appellant.

Thomas & Thomas and Coffee, Coffee & Gilliland, all of Big Spring, for appellees.

GRISSOM, Chief Justice.

Glenn Mayes sued Western Cotton Oil Company, West Texas Division, a corporation, and Willie Walker for damages caused by an automobile collision. Mayes alleged he was driving south on Highway 87, toward Big Spring, behind a truck of Western Cotton Oil Company, West Texas Division, hereinafter referred to as Western; that as Western's truck approached the top of a rise in the highway it turned east across the center stripe to its left side of the highway, whereupon Walker, who was driving a pick-up truck north, collided with the right front of Western's truck and glanced down the side of Western's truck into the front of Mayes' automobile, causing the damages sued for; that Western was guilty of negligence because its agent (a) failed to keep a proper lookout for the automobile of Mayes and the automobiles approaching him on the highway; (b) turned Western's truck to its left side of the highway in front of Mayes' automobile; (c) failed to give plainly visible and audible signal of his intention to so turn; (d) failed to keep the truck under proper control and (e) that Western's employee was guilty of negligence per se in operating the truck in violation of the law of the road in several particulars. Each of said acts was alleged to be a proximate cause of the collision.

Western answered Mayes' petition by alleging, among other things, that Western's employee was driving its truck south on a two-lane highway, approximately 20 feet wide, on his right-hand side as he approached Walker's pick-up going north; that Walker was driving on his left side of the highway and if Western's truck had continued on its right-hand side it would have collided head-on with Walker's pick-up; that the driver of Western's truck swerved to his left, causing a portion of Western's truck to be on its left side of the highway, in an attempt to avoid the collision but it collided with Walker's pick-up, which glanced along the side of Western's truck and into Mayes' automobile, which was following Western's truck.

Western alleged Mayes' damages were caused solely by the negligence of Walker (a) in driving on his left side of the highway; (b) in failing to give Faircloth, the driver of Western's truck, half of the main traveled portion of the highway, in violation of the penal statutes; (c) that at and just before the collision, Walker was driving and operating his truck upon said public highway 'while he was intoxicated and while he was under the influence of intoxicating liquor,' in violation of the penal statutes, which constituted negligence per se; (d) that Walker turned to his left without giving an appropriate signal of his intention to do so; that Walker (e) failed to keep a proper lookout; (f) failed to have his truck under control, and (g) was driving his pick-up when his faculties were impaired by the recent drinking of alcoholic beverages. Western alleged that each of the foregoing acts and omissions constituted negligence on the part of Walker and was the sole proximate cause of the collision.

Western further alleged that if it was mistaken in the allegation that Walker's negligence was the sole cause of the collision, that Mayes was guilty of negligence which was a proximate cause thereof because Mayes (a) was following too closely behind Western's truck; (b) failed to have his automobile under control; (c) was driving at an excessive and dangerous rate of speed and (d) failed to keep a proper lookout for Walker's automobile.

Walker answered that the damage to Mayes was not caused by him but was caused solely by the negligence of Western. Walker sued Western for damages. Walker alleged he was driving north, meeting Western's truck, when said truck was turned suddenly and without warning across the highway to its left in the path of Walker's pick-up causing Walker's pick-up to collide with Western's truck and glance off against Mayes' automobile; that Walker's damage was a proximate result of Western's negligence because its employee (a) drove its truck on his left side of the highway; (b) turned its truck suddenly across the highway in front of Walker's pick-up; (c) failed to yield half of the main traveled portion of the highway; (d) failed to keep a proper lookout and (e) failed to keep control of its truck.

The jury found (1) that the driver of Western's truck turned it to his left across the middle of the center of the paved highway; (2) that this was negligence and (3) a proximate cause of Western's and Walker's vehicles colliding and (4) a proximate cause of the collision of Walker's and Mayes' vehicles; (5) that Mayes' automobile had been damaged in the sum of $852.92; (6) that Walker's pick-up was of the value of $750.00 before and (7) $50.00 after the collision. The jury found that Walker's hospital and doctor bills amounted to $258.35 and that $11,380.00 would compensate Walker for his personal injuries.

The jury further found that just before the collision Walker (12) did not fail to keep a proper lookout; (13) did not fail to keep proper control of his pick-up; (16) did not drive on his left side of the highway, and (20) that just before Western's truck started to turn across the center of the highway Walker was not proceeding across the center of the highway towards Western's truck. The court entered judgment on the verdict for Walker and Mayes against Western. Western has appealed.

Appellant's seventh point is that the court erred in admitting the testimony of Walker that he was familiar with the market value of his pick-up prior to the collision, that it was then worth $750.00, and that after the collision it was practically worthless. Such testimony was admitted over appellant's objection that the proper predicate had not been laid because it was not shown that Walker was a dealer in automobiles or was familiar with the market. Walker testified that he had owned the 1942 Chevrolet pick-up that was involved in the collision for three or four months prior to the collision. He was then asked:

'Q. Are you familiar with the fair market value of that pick-up? A. Immediately prior to the time of the collision?

Whereupon appellant objected because 'the proper predicate has not been laid and it is not shown that he is a dealer in automobiles or familiar with the market.'

Whereupon Walker's counsel argued that a man owning a car was familiar with it and qualified to state its 'price,' without a predicate being laid. The objection was overruled, whereupon the following occurred:

'Q. Mr. Walker, were you familiar with the fair market value of that pick-up immediately prior to that collision? A. I would say it was worth seven and a half.

'Q. You think $750.00 would be the fair market value of it? A. I think so.

'Q. What was the car worth immediately after the collision? A. Just what it would weigh out for scrap iron.

'Q. Was there anything of value to the automobile? A. No, sir, nothing that I could see.'

It was not essential that the witness be a dealer in automobiles. If he had testified that he knew the market value of the pick-up immediately before and after the collision he would have shown prima facie that he was qualified to testify as to its value at said times. It is evident from the foregoing quotation that such was the effect of his testimony. We conclude that reversible error is not shown. Texas Pacific Coal & Oil Co. v. Taylor, Tex.Civ.App., 47 S.W.2d 1110, 1111; North East Texas Motor Lines, Inc., v. Hodges, Tex.Civ.App., 141 S.W.2d 386, 389, affirmed, 138 Tex. 280, 158 S.W.2d 487; City of Wichita Falls v. Mauldin, Tex.Civ.App., 23 S.W.2d 771, 774, affirmed Tex.Com.App., 39 S.W.2d 859; Fort Worth & D. S. P. Ry. Co. v. Judd, Tex.Civ.App., 4 S.W.2d 1032, 1036.

Appellant's eighth, ninth, tenth and eleventh points present the contention that the court erred in failing to submit its requested issues inquiring whether Walker, at the time of the collision, was driving (1) 'while he was intoxicated and while he was under the influence of intoxicating liquor' and whether such action was a proximate cause of the collision between (a) Walker's and Western's vehicles and (b) Walker's and Mayes' vehicles; (2) whether Walker was operating his pick-up when his faculties were impaired from the recent drinking of alcoholic beverages and whether (a) this was negligence and (b) a proximate cause of Walker's collision with (c) Western's and (d) Mayes' vehicles.

There was evidence from which the jury could have concluded that Walker was under the influence of intoxicating liquor at the time of the collision. Western's witness testified to the effect that as Western's and Walker's vehicles met near the crest of a slight hill the driver of Western's truck drove to his left across the center of the paved highway because Walker was driving on his left side of the highway and Western's driver pulled to his left in an attempt to avoid colliding with Walker's pick-up. Walker contended he was driving on his right side of the highway and Western's truck cut to its left and ran into him, causing Walker's pick-up to glance down the side of Western's truck and into Mayes' automobile. Why Western's driver turned to his left was the essence of the main question in dispute. As shown by the preceding reference to the pleadings, Walker and Western were each contending the other was guilty of negligence which was a proximate cause of the collision in driving on his left side of the highway and in failing to keep a proper lookout, failing to keep his vehicle under control, and the like. We have concluded that said issues relative to Walker's condition, requested by Western...