England v. Pitts

JONES, C. J. In a suit in a district court of Dallas county, appellee, Laura Pitts, recovered judgment in the sum of $1,284 against appellant, W. H. England, trading as Bonded Transfer Company, for personal injuries alleged to have been received through the negligence of an employee of appellant while operating one of appellant’s trucks. An appeal has been duly prosecuted to this court, and the following are the necessary facts: On January 29, 1929, at about 8 p. m. ap-pellee, a colored woman, walked north on the east side .of Carroll avenue in the city of Dallas, to the intersection of such street with Worth street, where she undertook to cross Worth street, and just as she reached the opposite side, but before she had stepped upon the sidewalk, a truck owned by appellant and operated by his employee, Bill Arnold, attempted to turn this corner and collided with appellee, knocking her down, rendering her npeojiscious, and inflicting various injuries upon her person. Appellee at such time was approximately 67 years of age. She was regularly employed, and did certain kinds of housework, such as washing, ironing, cooking, and taking care of the small .children of her employer. The amount of money she earned, prior to her injury, was small, being about $20 per month and her board. A-few months thereafter, this suit was instituted, against appellant to recover damag-és for the personal injuries appellee received on the date in question, on several alleged grounds of negligence. The suit came to trial in the latter part of January, 1931, and on January 30, 1931, was submitted to the jury on special issues, a verdict was rendered favorable to appellee, and judgment entered in -her behalf in the above designated amount. The findings of the jury are that: (1) Appellee sustained injuries on January 29, 1929, the occasion in question; (2) Bill Arnold, at the time and on the occasion in question, 'was the agerit and employee of appellant; (3) Arnold failed to use ordinary care on the occasion in question to sound a warning; (4) such failure was a proximate cause of appellee’s injuries; (5) Bill Arnold, on the occasion in question, was not driving the truck that struck appellee at a rate of speed in - excess of twenty miles per hour; (6) appellee, on the occasion in question, did not fail to use ordinary care for her own safety to keep a lookout before stepping into the street; (7) appellee, on the occasion in question, did not run into the side of the truck in question; (8) the injuries received by appellee on the occasion in question did not result from an unavoidable accident; and (9) the damages were assessed at $1,284. These findings are all supported by substantial evidence, and we adopt them as the findings of this court. Appellant answered by a general demurrer, special exceptions, a general denial, and a special plea that appellee was guilty of negligence proximately causing, and contributing to cause, her injury, such negligence consisting: “(1) In failing to keep a lookout before stepping into the street, in order to take care of her own safety, (2) in running into the side of an automobile and being thereby thrown to the ground, (3) in stepping into the street without looking where she was going, and without exercising due care for her own safety, and (4) in negligently and recklessly walking into traffic, while dressed' in dark clothes, without giving any warning, or sign of approach, and at a time when she could not be seen by the drivers of automobiles.” Appellant also specially pleaded that the injuries complained of “were due directly and proximately to an unavoidable accident, for which this defendant is in no way liable.” All of the special exceptions were overruled, and, while error is assigned on the action of the court, in overruling such exceptions, we do not find that any of such assignments presents reversible error. On the occasion of appellee’s injuries, appellant was the sole owner of the business, trading under the name of Bonded Transfer Company, and owned six trucks which bore the sign “A. O.' T. Bonded Transfer Company,” and operated such trucks in carrying on his business. At the same time, appellant was vice president and manager of the Dallas Baggage & Cab Company, a corporation, which owned various trucks bearing the sign “Dallas Baggage & Cab Company.” The business of each concern appears to have been operated from the same place. It was appellant’s claim at the trial that the Bonded Transfer Company, his individual business, neither owned nor operated the truck in question on the occasion under review, nor was the driver of such truck his employee. He also claimed that the evidence failed to raise a disputed issue in respect to the ownership of such truck, or that the driver, Arnold, was in his employ, and requested peremptory instruction in this respect in his favor, and has assigned error on the action of the court in overruling such request. He further claimed that, independent of the issue as to his ownership of the truck, the evidence failed to raise an issue as to the neg *495 ligence of the truck driver on the occasion in question, requested peremptory instruction in this respect, and has assigned error on the refusal of the trial court to give such instruction. Appellant has also assigned error on the manner in which the special issues, in respect to appellee’s ground of recovery, was submitted to the jury; also on the refusal of the court to give requested special issues submitting issues of appellee’s contributory negligence; also on the ruling of the court in respect to the admission of evidence, and in respect to certain arguments to the jury made by counsel for appellee in his closing speech. During the jury’s consideration of the case, an oral request was made of the court by the jury, through the bailiff in charge, that the deposition of appellant be sent to the jury room. This request was complied with by the court and the deposition sent to the jury. Appellant’s attorney, though in the courtroom at the time, did not know of this request, or that the deposition was sent to the jury, until the jury returned its verdict and he discovered that the deposition had been returned to the clerk with the other papers the jury had taken with them when they were sent to their room to consider their verdict. Appellant at once took a bill of exception to this action of the court, presented it as one of the grounds in his motion for a new trial, and has duly assigned error on the court’s action in sending the deposition to the jury room, and 4n overruling his motion for a new trial on such ground. The court did not err in overruling the motion for an instructed verdict, not in overruling appellant’s objection to the submission of the issues of negligence in behalf of ap-pellee, on the ground that there was no evidence to warrant such action. The evidence as to the ownership of the truck in question and the employer of the operator, Arnold, is in sharp conflict. As stated above, appellant’s deposition .was taken, presumably by appellee, and in such deposition appellant testified: “Bill Arnold was employed by me two and one-half years. He was in my employ when the above accident happened. He was driving one of my trucks. His duty was that of truck driving, delivering baggage. He was engaged in that work at' that time. * * * This Bill Arnold is still working for me. I first heard of this accident the next day. I got a report from Mr. Taylor. He heard of it through Bill Arnold. The truck was a one-ton truck. I don’t know which one he was driving. I could find out I do not know the make of the truck, only a one-ton, light baggage truck. * * * I think the Bonded Transfer Company was organized, in 1914, I don’t remember. I was not the owner of the company when it was organized. I became the owner in 1923. I bought out the company. It was not incorporated. W. H. Fritz owned it prior to my buying it. We have six trucks now.” This deposition was introduced in evidence hy appellee. In addition to this testimony, on the issue of ownership of the truck and the employer of its driver, appellee’s witness, John L. Reese, testified as to his proximity to the accident at the corner of Worth and Carroll streets, that there was a street light at that time on this corner,. and that the “truck had A. O. T. Bonded Transfer Company * * * i know for a fact that the truck had A. O. T. on it, Bonded Transfer Company. I do not know what the name of the company is that owned the truck, but I do know those letters and those words were on the truck.” Bill Arnold testified positively that he was not in the employ of the Bonded Transfer Company on the occasion in question, but was in the employ of the Dallas Baggage & Cab Company, and that he was driving one of their trucks at such time, and that such truck did not have on it the lettering “A. O.' T. Bonded Transfer Company,” but, on the contrary, had on it the lettering “Dallas Baggage & Cab Company,” and was owned .and operated by the latter'company on the occasion in question. Canceled checks made payable to Bill Arnold by the Dallas Baggage & Cab Company, as compensation for his services, were introduced in evidence. These checks covered the weeks from January 7, 1929, to February 24, 1929, one check being issued each week, varying in amounts from $10.30 to $21; the majority of such checks being in the neighborhood of $20. Appellant, in his own behalf, testified at the trial of the case that: “The truck that was being driven by Bill Arnold at the time of the accident involved in this suit belonged to the Dallas Baggage & Cab Company at that time. At the time my deposition wás taken in this, case, I did not know exactly which truck was inquired about, but I know now whose truck it was, and I testified that it belonged to the Dallas Baggage & Cab Company, and that Mr. Arnold was working for the Dallas Baggage & Cab Company at the time of the accident; he was not working for me at the time. * * * When this deposition was taken in the office of Mr. Herring, attorney for plaintiff, I testified that W. F. Arnold was working for me, and in a way he does work for me, he works for the company that I have an interest in. * * * In my deposition I testified that Bill Arnold was on a delivery for me, and was working for me, and in a way he was; he was working for the Dallas Baggage & Cab Company, and I am a part of that company. I did not know when my deposition was being taken that I was being asked about the Bonded Transfer Company, or what company was being asked about; I knew Bill Arnold at that time.” *496 When appellee introduced evidence from appellant’s deposition that he was the owner of the truck in question, and that Arnold, the driver, was an employee of his, and also introduced the evidence of Reese, to the effect that the truck in question had painted on it the lettering “Bonded Transfer Company,” she made a prima facie case of ownership of the truck in question in appellant. This prima facie case, however, is rebutted by the direct evidence of the driver, Arnold, that the truck was owned by the Dallas Baggage & Cab Company, and on the occasion in question was being operated by him as an employee of such company. It is further rebutted by the evidence of appellant, given on the witness stand, to the same effect; therefore appellant is met with the fact that the evidence as to the ownership of the truck in question and as to the employer of the driver, Arnold, is in sharp conflict, and is not undisputed evidence, as is necessary to form a basis for the first peremptory instruction requested by appellant. The assignment of error in this respect is overruled. Did appellee’s evidence raise the issue of negligence in respect to the failure of Arnold to sound some kind of alarm when he turned the corner at the intersection of Carroll and Worth streets, and struck appellee? If so, then the trial court did not err in refusing appellant’s second requested peremptory instruction. The effect of appellee’s testimony is that no sort of alarm was sounded by Arnold on such occasion. Arnold was placed on the witness stand by appellant, but did not testify as to whether an alarm was sounded or not, for counsel for appellant did not question him in this respect, although appellee had theretofore testified to the effect that no alarm had been sounded. Under the circumstances, the court could treat the testimony of appellee in this respect as undisputed and unchallenged, because it was permitted hy appellant so to go to the jury. The undisputed evidence showing that.no signal or warning was sounded, there is presented the question as to whether the truck driver, turning a street corner at night, without sounding any signal, exercised ordinary care for the safety of users of the streets? This was peculiarly a'question for determination by-the'jury, and not for the court. The assignment of error in this respect is overruled. Error is assigned because of the failure of the court to define the terms “negligence” and “contributory negligence.” If the court had used these terms in the submission of the issues to the jury, then this assignment would be well taken. The court defined the term “ordinary care,” and an approved definition of “negligence” is “a failure to exercise ordinary care.” Instead of using the term “negligence,” the court used the phrase “failure to exercise ordinary care.” If, as submitted by the court, appellant, acting through his employee Arnold, failed to exercise ordinary care to sound a warning, then he was guilty of negligence. In other words, there is no legal difference in the manner in which the court submitted the issue of negligence in each special issue and the manner in which appellant claims such issue should have been submitted. The assignment of error in this respect is overruled. Appellant timely objected to the manner in which special issue No. 3 was submitted. The language of this issue is: “Do you find from a preponderance of the evidence that the defendant, W. H. England, trading under the name of Bonded Transfer Company, acting through his agent and employee at the time and on the occasion in question, failed to use ordinary care to sound a warning?” Appellant’s objection is: (a) That the issue as submitted is duplicitous, ip that it submits two issues, one as to whether there was a warning sounded, and the other as to the negligence of the employee in not sounding a warning; or (b) if not duplicitous, then it is on the weight of the evidence, because it assumes that no warning was sounded. As wé have seen, the undisputed evidence shows that no warning was sounded; under such state of the evidence, the only issue for the jury to pass upon was whether such failure on the part of the employee was, negligence, and this was clearly submitted to the jury by the court. The assignment of error in this respect is overruled. A witness for appellee testified that she had known appellee since the witness was a child, and that appellee had been employed for a long time in the witness’ home. After thus qualifying, she was asked the question as to whether, from her observations of appellee before and after her injury, ap-pellee appeared to be as able to work after the accident as she had been before the accident. To this the Witness responded that appellee was not able to work after her injury. Error was assigned by appellant on the refusal of the court to strike out this answer. The answer is not responsive to the question, but appellant’s motion to strike out did not contain such ground. The witness’ long acquaintance with appellee and her observation of her, both before and after the injury, perhaps qualified her to express the opinion contained in her answer. Under the following authorities, we do not believe that this assignment presents reversible error: C., R. I. & T. Ry. Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; M., K. & T. Ry. Co. v. Farris (Tex. Civ. App.) 124 S. W. 497. Likewise we are of the opinion that reversible error is not shown in reference to the evidence given by George Pitts, appellee’s brother, with whom she lived," in response to the following question: “Well now, that next day (the day following the injury), just tell the jury wheth *497 er or not she appeared to he suffering physical pain,” to which the witness answered, “Yes sir, she was suffering great pain the next day.” The question was not objectionable, and the answer must be construed as responding to the question, that is, that appellee appeared’to be suffering great pain. No motion was made to strike out the answer because it was not responsive to the question. Under the following authorities, we hold that this does not present reversible error: St. Louis & S. W. Ry. Co. v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 7S3; G., C. & S. F. Ry. Co. v. Water, 62 Tex. Civ. App. 74, 130 S. W. 712; San Angelo Water, Light & Power Co. v. Baugh (Tex. Civ. App.) 270 S. W. 1101; I. & G. N. Ry. Co. v. Sandlin, 57 Tex. Civ. App. 151, 122 S. W. 60; Henson v. Warren (Tex. Civ. App.) 274 S. W. 185. Error is assigned on the argument of appellee’s attorney, in which, as shown bj? the bill of exception, he stated that the jury contained two truck drivers, and two former truck drivers; that appellee’s attorney had also been a truck driver, and knew something about truck driving, because, before and during the war, he had learned a lot about driving a bwo and one-half ton truck, and that he had driven a truck after he had come back from the Army; and then appealed to those of the jury who had had experience as a truck driver to agree with his experience that it was mighty hard to drive trucks in high gear at three miles per hour. This was not legitimate argument, for the reason that it is a plea to certain members of the jury to substitute their own experience in driving trucks for the testimony given by witnesses, and also because it is outside of .tlie record, in that appellee’s attorney testified as to his own experience as a truck driver. However,' as this argument is obviously in reference to the issue, which submitted the rate of speed the truck was being driven on the occasion in question, and as the jury returned a verdict against appellee’s contention and in favor of appellant, it does not constitute reversible error, there being nothing in the argument of a prejudicial nature against appellant as to the other issues submitted. The assignments of error in reference to other argument indulged in by the attorney we do not believe present reversible error, in that, in each instance, it appears that the attorney was drawing his own inference from testimony in evidence before the jury. We do not believe the court erred in refusing either of the two requested special instructions on the issue of contributory negligence of appellee.- The two special issues submitted by the court in the main charge, we think, fully covered the issues of contributory negligence raised by the evidence. The assignments -of error in this respect are overruled. Does the fact that the deposition of appellant was sent to the jury room, at the request of the jury, constitute reversible error? Article 2193, R. S. 1925 reads: “The jury may take with them in their retirement the charges and-instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused.” The mandate of this statute is to forbid depositions to he taken by the jury in their retirement to consider their verdict. A deposition is received in evidence by " being read to the jury from the witness stand, and this statute places such evidence, in the manner of its reception by the jury, precisely on the same footing that is necessarily given the oral evidence of a witness, while a violation of this statute, in respect to the matter under inquiry, would thwart this purpose and place the deposition of a witness on a different footing to -that of oral testimony, in that the jury would have the evidence given by the deposition continually before them, to be reread and considered by them in the absence of oral testimony that is contrary to the. evidence in the deposition. That the provisions of this statute are mandatory appears to be settled law in this state. Snow v. Starr, 75 Tex. 411, 417, 12 S. W. 673; Putnam Supply Co. et al. v. Chapin (Tex. Civ. App.) 45 S.W.(2d) 283; Stolz v. Wells (Tex. Civ. App.) 43 S.W.(2d) 163, and the authorities cited in these cases. However, the violation of a provision of a mandatory statute, prescribing procedure in the trial of cases does not necessarily present reversible error. The rule appears to be that, when a mandatory provision of such, a statute is violated, such violation constitutes reversible error, unless it affirmatively appears from the .record that the violation of such statute visited no injury upon the losing party. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Miks v. Leath (Tex. Civ. App.) 26 S.W.(2d) 726, and authorities therein cited and reviewed; Putnam Supply Co. et al. v. Chapin, supra; Stolz v. Wells, supra. The question under consideration, therefore, resolves itself to this: Does the record in this case affirmatively disclose the fact that no injury to appellant resulted from the sending of the deposition to the jury? The record discloses these facts: Appellant did not know, until the verdict was returned, that the deposition had been called for by the jury and sent t-o them by the court. The deposition in question contained evidence given by -appellee prior to the trial of the case and read in evidence by appellee. It bore on only one material -fact in the case; that is, the ownership of the truck in question and the employer of the driver of such truck. In such deposition, appellant testified that he was the owner of the truck and the employer of its driver. On the witness stand, at the time of the trial, he testified, in *498 effect, that at the time his deposition was taken he did not understand what truck was under consideration, and explained the use of his language, as to being the owner of such truck, in that he was vice president and manager of the Dallas Baggage & Oab Company, and had its trucks under his control, as well as being the owner of the Bonded Transfer Company. He testified further that the truck was not owned' by the Bonded Transfer Company, but was owned and operated exclusively by the Dallas Baggage & Cab Company, and that Arnold was not in the employ of the Bonded Transfer Company, but was-exclusively employed by the Dallas Baggage & Cab Company. The issue as to who was the employer of the- driver of the truck- was submitted to the jury as a disputed issue, and, as we have before seen, the evidence as to such employment was in sharp conflict. There is no direct evidence as to what issue the jury was considering when • they sent for appellant’s deposition, but, as the issue of the employer of the truck driver was the only issue submitted to the jury, in which appellant’s deposition had any bearing, the conclusion is inevitable that the jury had under consideration such issue when the request was sent for such deposition. There is no evidence that the jury read the deposition when it was received, but again we think the conclusion inevitable that the jury did read the deposition and considered its contents upon the issue of the employer of the truck driver, which is special issue No. 2. It cannot be conceived that the jury had any other purpose in sending for the deposition than to read and consider its contents on this disputed issue. The verdict returned, in answer to the issue upon which the deposition bore, is against appellant. Unexplained by appellant’s testimony given on the witness stand, his testimony in the deposition was conclusive against any contention as to the truck driver not being appellant’s agent and employee on the occasion in question. Under these facts shown by the record, we do not think it is made to appear that no injury resulted to appellant by the violation of this statute, in sending the deposition to the jury. On the contrary, we think the presumption from the facts above stated is that injury did result therefrom. In justice to the trial court, it should he stated that, when the deputy sheriff made to the court the eral request of the jury for the deposition, the court, seeing attorneys for both sides in the courtroom, assumed - that they heard the request and did not object to the sending of the deposition to the jury. The bill of exception, however, amounts to a certificate that counsel for appellant did not know of the request of the jury and the sending of the deposition until after the verdict was returned. Putnam Supply Co. et al. v. Chapin, supra. We are of the opinion that the assignment of error on this issue must be sustained. ' It necessarily follows that, because of the error above pointed out, this case must be reversed and remanded for another trial, and it is so ordered. Reversed and remanded.