Woodrum Truck Lines v. Bailey

• Decision Date: 15 February 1933
• Docket Number: No. 1361-5930.,1361-5930.
• Citation: 57 S.W.2d 92
• Parties: WOODRUM TRUCK LINES v. BAILEY.
• Court: Texas Supreme Court

57 S.W.2d 92

WOODRUM TRUCK LINES v. BAILEY.

No. 1361-5930.

Commission of Appeals of Texas, Section B.

February 15, 1933.

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

Suit by F. G. Bailey against the Woodrum Truck Lines. Judgment for defendant was reversed by the Court of Civil Appeals [36 S. W.(2d) 1090], and defendant brings error.

Affirmed.

Sullivan, Speer & Minor, of Denton, and Collins & Houston, of Dallas, for plaintiff in error.

W. F. Smith, of Oklahoma City, Okl., and Robert H. Hopkins, of Denton, for defendant in error.

RYAN, Judge.

This suit was instituted by Bailey, defendant in error, against the partnership firm of Woodrum Truck Lines, plaintiffs in error, for damages alleged to have been sustained by Bailey as the result of an automobile collision alleged to have been proximately caused by the negligence of the agent and employee of the Truck Lines.

A jury to whom special issues were submitted found that the driver of the truck owned by the Truck Lines was not guilty of the negligence on which Bailey based his suit, that Bailey was not guilty of contributory negligence, and that the collision of the motor vehicles that resulted in the injury to plaintiff below was an unavoidable accident; the trial court accordingly rendered judgment against plaintiff below and in favor of the defendant, Truck Lines, and the individual members of that partnership firm.

Motion for new trial was overruled on December 20, 1929.

The Court of Civil Appeals held that there was no proper basis in the evidence for submitting the defense of unavoidable accident in any form, as a separate and independent defense, but this could not have resulted injuriously to the plaintiff, Bailey, since the jury's finding that the defendant Truck Lines, was not guilty of the negligence on which the suit was based was itself a separate and full defense.

The Court of Civil Appeals, in this connection, states: "On the issue as to whose fault it was that brought about the collision, the evidence was sharply conflicting. The testimony of several witnesses for the plaintiff would support a finding that the collision was the result of the negligence of the truck driver, while according to the testimony of several witnesses offered by the defendants, it was occasioned through the negligence of plaintiff and not through any negligence on the part of defendants. * * * In rebuttal of the testimony of plaintiff's witness, Sidney Willis, which tended to show that the collision resulted from the negligence of defendants' truck driver, the defendants introduced Ted Lewis, the sheriff, who testified that he had gone to the place where Willis said he was, when he witnessed the accident, and by reason of certain natural obstructions to his view, it would have been impossible for Willis, from that location, to see the two cars as they approached the place of collision. After introducing that testimony, counsel for defendants in open court and in the presence of the jury offered and requested the court to permit the jury to go to the place of the accident and there view the surroundings."

Bailey's counsel objected to the granting of the request, and, although said request was refused by the court, took a bill of exceptions to the action of defendants' counsel in making the offer in the presence of the jury on the grounds, first, that it is not permissible for the jury to take such action while trying a case; and, second, the offer was deliberately made and calculated to and would prejudice the rights of plaintiff before a jury trying the cause, in that plaintiff was forced to object to such action, and the jury concluded, or could have concluded, from the fact that said objection was made, that the plaintiff did not desire them to view the scene of the accident, causing them to be prejudiced against him.

The Court of Civil Appeals concluded that a viewing of the premises by the jury would have been such misconduct as constitutes reversible error, and plaintiff had the legal right to object and should not be prejudiced for exercising such legal right, but plaintiff was thus placed in a situation from which the jury might construe the refusal to agree to such viewing as an admission, that the testimony of the witness, Sidney Willis, was untrue and was reasonably calculated to prejudice the rights of plaintiff; the court therefore determined that such an injury will be presumed, in the absence of any showing in the record, that it did not operate to plaintiff's harm (Bell v. Blackwell [Tex. Com. App.] 283 S. W. 765), and for that error reversed the judgment below and remanded the cause. 36 S.W.(2d) 1090, 1094.

The application for writ of error to the Supreme Court assigns as error (1) such action of the Court of Civil Appeals; and (2) the action of that court in refusing to dismiss the appeal on the ground that the appeal bond was not filed within twenty days after expiration of the term at which judgment was rendered.

We shall consider, first, the motion to dismiss the appeal.

First. Courts of Civil Appeals have the power, upon affidavit or otherwise, as by them may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction. Article 1822, Rev. Stat. 1925.

Whether the appeal bond was filed within the time prescribed by law was a question of fact, and therefore determinable by the Court of Civil Appeals.

It appears from the transcript that the trial court adjourned on December 21, 1929. That the appeal bond in the present case must have been approved and filed within twenty days thereafter is jurisdictional. Article 2253, Rev. Stat. 1925.

Whether the bond was so approved and filed within that period is a question of fact. The appeal bond was marked "filed" by the clerk of the trial court, on January 11, 1930, which was the twenty-first day after expiration of the term of court at which the judgment was rendered. In reply to a motion to dismiss the appeal because said bond was not filed within the statutory period, the appellant satisfied the Court of Civil Appeals, by affidavit, that, contrary to said file mark, the bond was actually filed and approved within the twenty-day period, and the motion to dismiss was overruled. We see no error in this. Blalock v. Slocomb (Tex. Com. App.) 245 S. W. 648; Maury v. Turner (Tex. Com. App.) 244 S. W. 809.

Second. Plaintiffs in error contend that there is no statute on the subject of permitting the jury to view the surroundings of the accident, and it is therefore within the discretion of the trial court to permit such view, as at common law, with the logical result that no error was committed by counsel in offering to allow such view.

While at common law the practice of allowing the jury to examine or view the premises or property concerning which the controversy exists (where it was impossible or inconvenient to...