Whitehead v. Montgomery

• Decision Date: 23 March 1950
• Docket Number: No. 2895,2895
• Parties: WHITEHEAD v. MONTGOMERY.
• Court: Texas Court of Appeals

Page 196

228 S.W.2d 196

WHITEHEAD v. MONTGOMERY.

No. 2895.

Court of Civil Appeals of Texas, Waco.

March 23, 1950.

Rehearing Denied April 6, 1950.

John Touchstone, Dallas, George C. Cochran, Dallas, for appellant.

Burt Barr, Dollas, Earl R. Parker, Dallas, for appellee.

TIREY, Justice.

Plaintiff brought this suit to recover damages resulting to one of his trucks. On trial (non-jury) the court found in favor of the plaintiff and awarded damages to him in the sum of $400.00 and defendant has perfected his appeal. There was no request for findings of fact and conclusions of law and none were filed.

Points 1, 2, 3 and 4 assail the judgment of the trial court substantially on the ground (1) that here is no evidence of negligence and proximate cause; (2) that if there is such evidence, it is wholly insufficient; (3) that the court did not dispose of the case on the theory that defendant was only responsible for negligence and proximate cause attributable to him; and (4) there is no basis for the trial court to enter judgment upon the theory of liability for breach of contract.

Testimony was tendered to the effect that the truck was owned by the plaintiff; that he had a driver for it, and at the time in question it was loaded with hot asphalt. One afternoon the driver called plaintiff and advised him that he had had a breakdown and he and one of his mechanics went to the scene of the accident and took with them some big hydraulic jacks; that they tried to raise the truck into a position to put on one of the rear wheels that had come off, but were unable to do so; that the truck was near the Union Terminal Station in Dallas and a policeman came to plaintiff and asked him to move the truck as soon as he could; that he called defendant and defendant came down and looked at the truck and undertook to lift it up with one of his wreckers so that he could put the wheel on but that he could not do so because the brake shoe and back flange were torn up 'so bad that he could not get it on'; that plaintiff then said to defendant, 'Is there any way we could get it over to my shop' and defendant said, 'We can put two wrecks on it; one to hold it down and one to move it' and 'I said, 'do you think you can move it?" and then defendant said, 'I know we can if you will let us do it.'

Defendant testified to the effect that when he first tried to pick up the truck it was loaded so heavily it kicked the front end of the wrecker off of the ground; that he then tried to put to wheel back on so he could tow it from the front but was unable to do so, 'so I called for another wrecker * * * to utilize the weight of the second wrecker to hold my front wheels on the ground * * * to tie it on to the front end so we could move it. * * * We got it hooked up and we moved from in front of the Union Terminal down to Commerce and Houston (streets) * * * I was pushing the front wrecker * * * I started to make this turn and the chain snapped * * * It turned the truck over on the side; spilled the load over on the pavement. * * *

'Q. Which one of them broke as you made this turn right down here? A. It was the chain on the right hand side broke. * * *

'Q. That is what turned it over? A. It allowed that side to drop down and consequently the truck tipped over. * * *

'Q. Now then, at the time you first picked the truck up, did you have any conversation with Mr. Montgomery? A. Yes, sir.

'Q. Do you remember the conversation, Herbert? A. No I just told him what I had to do in order to move the truck and he said, well, he would like to get it moved over there because he had this not asphalt on there and if it is allowed to set too long it would get set up, as I understand it; it would get too hard to do anything with. * * *

'Q. Did he also tell you that he had to get the truck out of the traffic way down there? A. Well, I don't know. That was the general understanding though, because we knew the five o'clock rush was coming on.

'Q. When you told him one truck wouldn't handle it, what did he tell you when you told him you would have to have two? A. Anything to get them; that I knew what to do.'

Plaintiff testified in part to the effect that he had not had any experience in moving trucks that were broken down; that he had watched them being moved; that he was present when Mr. Whitehead used the two wreckers to get his truck off of the ground so that it could be moved.

'Q. Was there anything that you noticed that he did that the shouldn't have done? A. No, sir, I sure didn't.

'Q. As far as you know he was just as careful as he could be? A. The only thing I noticed he done the shouldn't have done and that was when he put the cable around the frame and lifted and twisted it without having the load in it. That's when he twisted the frame and broke those cross members.

'Q. That is the only thing you noticed. A. Yes, sir, that's the only thing I noticed that he done wrong.

'Q. You don't blame him for this truck turning over, do you? A. No, sir.'

Plaintiff further testified to the effect that when the defendant got the truck to his shot 'it had the main leaves on the rear springs and both mains springs were broken and the drive shaft casing. The rear end housing was sprung. The transmission casing was broken and the bell housing was broken. The frame was twisted. The cowl broke loose from the cab. The dump body was all caved in and the boards all broke off of it. And the cross members were pulled loose from the frame.'

Plaintiff testified that after defendant had hoisted the truck and was in a position to move it that he got in his car and proceeded on his way to his shop but when he failed to see that they were trailing him, he turned around and went back and found that one of the chains holding up the truck had broken and that it had turned over and falled to the ground, thereby causing the alleged damage to his truck.

Plaintiff in his pleadings pertinent to this discussion alleged that he made a verbal contract with the defendant to use such means and equipment as might be necessary to move the truck from the point where it had broken down to his place of business and agreed to pay defendant's price for such service. He further specifically alleged: 'That when said defendant delivered said truck to the plaintiff's place of business that same was a complete wreck; that it had been severely damaged due to the negligence of the defendant in a manner well known to the defendant but unknown to plaintiff, because defendant had exclusive control of the manner and operation for removing said truck and plaintiff was not present. Plaintiff relies upon the doctrine of...