Flanigan v. Carswell

315 S.W.2d 295, 1958 Tex. App. LEXIS 2145

• Court: Court of Appeals of Texas
• Decided: June 11, 1958
• Docket: No. 10570
• Status: Published

Opinions

GRAY, Justice.

Appellee, Jack Carswell, suffered ‘njuries to his person and to his property when his ambulance (operated by him) collided with an automobile operated by appellant, James Eugene Flanigan.

, Carswell sued Flanigan and appellant, J. C. Smith operating as Courteous Cab Service, and alleged that Flanigan was Smith’s agent. He further alleged that on the afternoon of May 23, 1955, he was making an emergency call in his ambulance; that he was driving with his siren and red light equipment engaged and working; that as he approached the intersection of Richmond Avenue and Map-dell Street in the City of Houston Flani-gan was also approaching said intersection, and that the collision occurred as the result of acts of negligence of Flani-gan which negligence proximately caused the collision and the resulting injuries.

Subsequently Flanigan filed a separate suit against Carswell for damages for personal injuries sustained by him in the collision and alleged such damages were sustained as a proximate result of Cars-well’s negligence.

The above causes were consolidated and subsequent to such consolidation Bobby Wilson, a minor, by his next friend W. L. Wilson intervened. He alleged that at the time of the collision he was a passenger in the ambulance; that he suffered personal injuries as a proximate result of Flanigan’s negligence and sought a recovery against Flanigan and Smith for his damages.

Smith sued Carswell for damages sustained to his automobile which was operated by Flanigan.

A judgment, on a jury’s verdict, was rendered awarding Carswell and Bobby Wilson damages against Flanigan and Smith jointly and severally. Smith and Flanigan were denied any recovery against Carswell.

Carswell and Bobby Wilson, upon the trial court’s order, filed remittiturs. Thereafter judgment in favor of Carswell for $12 000 and in favor of Bobby Wilson for $2,000 was entered.

Flanigan and Smith have appealed and by their first point say that the trial court erred in overruling their plea to the jurisdiction of that court because prior to the trial the cause was dismissed -for want of prosecution; that the cause had never been reinstated, and that the judgment of dismissal had become final.

This cause proceeded to trial September 9, 1957. On that day appellants filed their plea to the jurisdiction of the trial court which alleged substantially that some months prior thereto the cause was regularly called for trial; that the plaintiffs made no announcements; that the cause was dismissed for want of prosecution, and that it had never been reinstated. The pica was sworn to by an attorney who’ was present at the call of the docket when the cause was dismissed.

The transcript contains no judgment dismissing the cause and no judgment overruling the plea. However appellants rely on notations ’ made on two docket sheets which are:

1. “Jury Docket June 10, 1957 ⅜ * * * * ⅜

“456242

Dismissed

“Jack Carswell et al James Eugene Flanigan et al 55”

and

2. “Sep. 9, 1957 Plea to jurisdiction overruled.”

Appellants do not contend that there is any record other than as is above stated to show that any judgment was entered of record.

In Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566, the court said:

“Judgments and orders of courts of record to be effectual must be entered of record. Neither entries in the judge’s docket nor affidavits can be accepted as substitute for such record; and docket entries, affidavits, and other like evidence can neither change nor enlarge judgments or orders as entered in the minutes of the court. R.S.1925, arts. 1899, 1902, 1918; Rule 65 for District Courts; Ex parte Rains, 113 Tex. 428, 433, 257 S.W. 217; Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469 (application for writ of error refused) ; Noblett v. Olive (Tex.Civ.App.) 259 S.W. 305; De Zavala v. Scanlan (Tex.Com.App.) 65 S.W.2d 489, 491.”

The judgment alleged in support of point one was not entered of record and it is not effective. The point presents nothing-for review. Ex parte Rains and Daniel v. Daniel, both supra. 25 Tex.Jur., p. 427, Sec. 60. Point one is overruled.

The majority holds that reversible error is not presented by the showing that Cars-well did not have a chauffeur’s license. They also hold that the trial court erred in requiring appellees to file remittiturs and sustain their cross point praying that the judgment be reformed by restoring thereto the amounts of the remittiturs. I do not agree.

Carswell operated a funeral home in the City of Houston. He owned the ambulance in question for which he had been issued a permit by the Texas State Health Department under Art. 4590b, Vernon’s Ann.Civ.St. The permit designated it as an emergency ambulance.

Carswell was driving the ambulance and was traveling at a rate of speed in excess of thirty miles per hour but not over forty. Carswell did not have a chauffeur’s license but had only an operator’s license. At the place where the collision occurred the speed limit for ordinary traffic was thirty miles per hour and for emergency vehicles it was forty miles per hour. As to his earnings from the ambulance Cars-well testified:

“Q. Are you telling the jury you made $60.00 a day over a period of a year from the use of that ambulance? A. Yes sir, average income.

“Q. If you made $60.00 a day that would be $1800.00 a month? A. Average.”

By issue three the trial court asked the jury if “the vehicle operated by plaintiff, Jack Carswell, was on an authorized emergency run at the time of the collision in question?” The jury found that it was.

By issue six the jury was asked if Flan-igan “failed to yield the right of way to the vehicle being driven by” Carswell. The jury found he did. By issue nine the jury was asked:

“Do you find from a preponderance of the evidence that Jack Carswell was driving the ambulance in question at a rate of speed in excess of forty miles per hour?”

The jury found he was not.

Appellants objected to the charge for the reasons that Carswell had not complied with the law in regard to driving an ambulance at a rate of speed in excess of thirty miles per hour and that he did not have a chauffeur’s license as required by law to authorize him to drive the ambulance in excess of thirty miles per hour. They also requested the submission of an issue inquiring if Carswell was operating his ambulance at a speed in excess of thirty miles per hour and requested accompanying issues of proximate cause. These issues were refused. Appellants also filed their motions for an instructed verdict, for judgment non obstante vere-dicto and for mistrial.

It must be determined whether Carswell was lawfully authorized to drive his ambulance at a rate of speed in excess of thirty miles per hour when he did not have a chauffeur’s license? Or, stated differently, do the facts that the ambulance was an emergency ambulance and was on an emergency run authorize it to be driven at a rate of speed of forty miles per hour regardless of the license held by its operator?

There is no dispute that the vehicle driven by Carswell was an emergency ambulance and that it was driven at a rate of speed in excess of thirty miles per hour.

Here Carswell sues for his own personal injuries and defends the suit against him on the ground that the law authorized him to drive forty miles per hour and further required Flanigan to yield the right of way to him.

An ambulance is a motor vehicle. Sec. 1(b) of Art. 6687b, Vernon’s Ann.Civ.St. Sec. l(o) of that article defines a chauffeur as:

“every person who is the driver for wages, compensation, or hire, or for fare, of a motor vehicle transporting passengers.”

Sec. 2(a) provides:

“(a) No person, except those here-, inafter expressly exempted, shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of this Act.”

Sec. 3 names persons who are exempt from license requirements, and in part provides that:

“It shall not he necessary for an employee of any incorporated city, town or village of this State or county of this State when holding an operator’s permit to obtain a chauffeur’s license in order to operate an official motor vehicle in the service of such incorporated city, town, village or county.”

Ambulance drivers are not exempted by said section. Carswell was not an employee of the city and the ambulance was not operated in the service of the city.

Art. 813, Vernon’s Ann.P.C. defines a chauffeur and makes it a misdemeanor for any person to operate a motor vehicle as a chauffeur when such person is not licensed to do so. Also Sec. 44 of Art. 6687b supra makes it a misdemeanor for any person to violate any of the provisions of the Act.

Carswell’s testimony supra shows he was operating his ambulance for compensation. Also we think it must be said that he was transporting passengers. Hazen v. Chambers, 71 App.D.C. 220, 108 F.2d 741. The question there presented was whether ambulances in which persons were carried for a fee were subject to a statute providing :

“Owners of passenger vehicles for ■ hire,-whether operated from a-private establishment or' from public space, other than those licensed in the two preceding paragraphs, shall pay a license tax of $25 per annum for each such vehicle used in the conduct of their business.” D.C.Code Supp. IV, T. 20, § 1731(d).

The court said:

“Sick or well, one who is carried, for hire, through the streets in a vehicle kept and driven by another for such purposes seems to us to be a passenger in the ordinary sense of the word. Whether the hire is greater or less than the cost of the service is not material. Unless a restricted meaning is to be given to the word ‘passenger’ in this statute, it follows that these ambulances are ‘passenger vehicles for hire.’ We see no reason for giving the word a restricted meaning. In fact, there is excellent reason for not doing so, since § 1731(e) of the Code defines by reference to the quoted section those vehicles whose drivers are required to have ‘character’ licenses and display numbered badges. These requirements seem at least as appropriate to ambulance drivers, who carry helpless passengers, as to cab drivers.”

Art. 4590b, supra is specific in naming the requirements for securing a permit ■for an ambulance but makes no provision as to the kind of license the operator shall have. The absence of this provision cannot be of any assistance to Carswell on the question here presented because if such absence is to be construed as having any meaning it -could -just as well mean that the operator of the ambulance was not required to have any kind of operator’s license. This would be contrary to the express provisions of Art. 6687b supra providing that “no person, except those hereinafter expressly-exempted, shall drive any motor vehicle upon a highway * * * unless such person has a valid license * * * under the provisions of this Act.” The provisions of the Act. Sec. 1(c) supra, provide that- the driver of a'-'-motor vehicle for “wages, compensation, or hire, or for fare” is a chauffeur.

Art. 791, Vernon’s Ann.P.C. and Sec. 8 of Art. 827a, exempt “ambulances responding to emergency calls” and other named vehicles from the operation of the general speed law. Those statutes contemplate the lawful operation of the vehicles. Here we are concerned not with the ambulance as such but with the driver’s authority under the law to drive it at a rate of speed in excess of the rate fixed for general traffic.

There is before us an ordinance of the City of Houston which defines an ambulance, requires a permit for its operation and also requires a permit to be secured from the Director of Public Works for the driver of such ambulance. An examination of the ordinance is not necessary further than to say that it cannot legally conflict with the Constitution and general laws of this State. Constitution, Art. 11, Sec. 5, Vernon’s Ann.St., Art. 1165, Vernon’s Ann.Civ.St. Arts. 6687b and 813, supra are general laws of the State and, in any event, are controlling over the provisions of the ordinance if in conflict therewith. 30-A Tex.Jur., Secs. 305 and 306, p. 295 and p. 299.

The cause was submitted to the jury on the theory that Carswell was operating an authorized emergency ambulance, and, if at the time of the collision he was on an authorized emergency run, he was authorized to drive at a speed of forty miles per hour, and was entitled to the right of way over other vehicles. This .theory was no doubt argued to the jury. Issues three, six and nine supra justified .such argument. Thus Flanigan was put on an unequal driving basis with Carswell who was afforded an unjust advantage .even though he was violating Arts. 813 and 6687b, supra.

In reaching my conclusion I of course separate the ambulance and its driver Carswell. To here say that Carswell was entitled to the privileges afforded an emergency vehicle and to urge the same in support of his cause of action and in defense of that alleged against him would ignore the provisions of Arts. 6687b and 813, supra. It would be equivalent to saying that the driver of an emergency ambulance is entitled to the privileges secured to emergency vehicles regardless of licensing requirements prescribed by the Legislature. Carswell

“was not a trespasser on the street; he had a right to drive his automobile there just the same as any other person had; the law forbade him to operate a motor vehicle on the street ‘as a chauffeur.’ By ‘a chauffeur’ is meant one who operates an automobile for hire. The law permitted him to drive that car upon the street when he got a license for the car. He was not permitted to carry passengers in it until he got his license as a chauffeur. If he violated the law, he was guilty of a misdemeanor and punishable by fine. His act which authorizes such fine is not operating his automobile on the street, but carrying passengers for hire.” Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89, 95.

See also annotations in 105 A.L.R. p. 69 et seq.

The holding in Stack v. General Baking Co. supra is applicable to the facts here even though it may be said that Wilson was not a passenger but was an employee of Carswell and therefore Carswell at the time was not carrying a passenger. The fact remains that he was driving his ambulance at a rate of speed in excess of thirty miles per hour which he was not authorized to do.

What has been said supra, in my opinion, requires that the judgment in favor of Carswell be reversed. There then remains the disposition of the judgment in favor of Bobby Wilson.

Bobby Wilson alleged that he was a passenger in the ambulance but testified that he was an ambulance attendant for the Carswell Funeral Home and that he operated the siren switches on the ambulance.

It is the general rule that ordinarily a passenger or guest in a motor vehicle driven by another may lawfully rely on the driver to keep a proper lookout and to exercise proper care. However when the passenger or guest suffers injuries as the result of a collision of the vehicle in which he is riding with another vehicle the driver or owner of such other vehicle may escape liability for damages upon showing that the conduct of the other driver was the sole proximate cause of the collision. Tex.Jur. 10 Yr.Sup., Vol. 2, p. 273, Sec. 320.

In their answer to Wilson’s plea of intervention appellants alleged that Cars-well’s negligence was the sole cause of the collision. No issue was submitted and none were requested submitting this defense to the jury.

The jury found that just prior to the collision Wilson “acquiesced and consented to the manner in which the ambulance was being driven by” Carswell. And further found that in doing so Wilson did not fail “to exercise that degree of care of an ordinarily prudent person under the same or similar circumstances.”

Under this state of the record there arises the question: Does Rule 434, Texas Rules of Civil Procedure, permit a reversal as to Carswell and an affirmance as to Wilson? Rule 434, in part, provides:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial. * * * if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.”

The cause was tried on the erroneous theory that Carswell was authorized to drive at forty miles per hour and it must be ascertained whether he was negligent in so driving and whether such negligence, if any, was a proximate cause of the collision.

Any recovery of damages by Wilson as well as Carswell depends on a showing of negligence on the part of Flanigan As is above stated this issue of negligence was not properly tried because the theory of the trial as well as the submission was that Carswell could lawfully drive at forty miles per hour while Flanigan was limited to thirty miles per hour.

The alleged negligence of Flanigan is the foundation of Wilson’s cause of action as well as that of Carswell and the issue is not severable. See Waples-Platter Co. v. Commercial Standard Insurance Co., Tex., 294 S.W.2d 375. Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857 — decided under former Rule 62a.

The jury found that $30,000 would fairly and reasonably compensate appellee, Cars-well, for personal injuries sustained by him and that $5,000 would so compensate appellee, Bobby Wilson. In their motion for new trial appellants complained that the verdict as to each of appellees was excessive to such extent as to require either a -new trial or remittiturs. Upon hearing this motion the trial court found that the motion “ought to be granted unless within ten days after the rendition of this Order, the plaintiffs voluntarily file” remittiturs as follows: $18,000 as to Carswell and $3,000 as to Bobby Wilson. Thereafter the remittiturs were filed without protest and the motion for new trial- was .overruled.

Appellees say that Rule 328, Texas Rules of Civil Procedure, affords them the right to have the above action reviewed. The source of Rule 328 is Art. 2235 which had been considered by the courts prior to the adoption of the rule. In World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962, the court answered a certified question concerning the right of a trial court to require a remittitur. The court said the question was too general to be answered yes or no, but in support of its conclusion that a trial court may, with the consent of the plaintiff, enter judgment after re-mittitur the court quoted from Texas & N. O. Ry. Co. v. Syfan, 91 Tex. 562, 44 S.W. 1064, 1065, as follows:

“The weight of authority sustains a doctrine contrary to that heretofore asserted by our courts, and accords to the court trying the case the discretion to suggest a remittitur, of a stated amount as a condition upon which a motion for new trial will be overruled or a judgment affirmed, when there is no other error, and the court finds that the verdict of the jury is for an excessive amount, and that, upon 'the plaintiff’s accepting the terms and entering the remittitur, the court may overrule the motion for rehearing or affirm the judgment, the error being cured by the remittitur.”

After the adoption of Rule 328, supra remittiturs have also been considered. In Texas & New Orleans R. Co. v. Goolsbee, Tex.Civ.App., 238 S.W.2d 280, the jury assessed appellee’s damages for personal injuries at $22,500. The trial court ordered a remittitur of $8,000 which was filed “under protest.” The Court of Civil Appeals ‘ held that the railroad was not liable to appellee for damages for his injuries and reversed the ’judgment of the trial court without discussing other assignments of ‘error or the remittitur. The cause reached the Supreme Court, the judgment of the Court of Civil Appeals was reversed and the cause was remanded to that court for further consideration. 149 Tex. 445, 234 S.W.2d 407. The Court of Civil Appeals again reversed the judgment of the trial court because of the absence of jury findings relating to the doctrine of imminent peril. In disposing of the question as to the remittitur the court said: “Appellee chose to make the remittitur.” It then cited World Oil Co. v. Hicks supra and said:

“ * * * the trial court has the discretion to suggest remittitur of a stated amount as a condition on which a motion for a new trial will be overruled or a judgment affirmed where there is no other error and the court finds that the verdict of the jury is for an excessive amount.” Texas & N. O. R. Co. v. Goolsbee, Tex.Civ.App., 238 S.W.2d 250, 254.

Again the above cause reached the Supreme Court, 150 Tex. 528, 243 S.W.2d 386. That Court disagreed with the Court of Civil Appeals as to its announcements of the law under the doctrine of imminent peril, reversed the judgment of the Court of Civil Appeals and affirmed that of the trial court. Neither the trial court nor' the Court of Civil Appeals assigned any reason for requiring the remittitur, and neither did the Supreme Court in affirming the judgment of the trial court. '

In Adams v. Houston Lighting & Power Co., Tex., 314 S.W.2d 826, the Supreme Court said:

“ * * * The case being one of an excessive verdict, there is no rule prescribing the manner by which the court determines the amount of ’ remittitur. The amount of damages arrived at by the court in that manner, $25,500, was approximately one-half of the damages pleaded and one-half of the damages having support in the evidence. We cannot, therefore, hold as á matter of law that the court erred in the amount of'remittitur required.”

In arriving at the amount of damages sustained by the respective appellees the jury was instructed to consider the following elements and none other: past and future physical pain and mental anguish and the present cash value of loss of earning capacity.

A review of the evidence shows that after the collision Carswell went to a hospital; that he called his attorney; that he remained in the hospital overnight and then went home; that in a short time he returned to work at his funeral home and that in about six weeks he resumed driving an ambulance. His injuries consisted principally of swelling in his left arm and head with bleeding from a cut tongue and ear. At the time of the trial he was suffering from some pain in his neck, left shoulder and left arm, the cause of which was attributed to nerve pressure.

Bobby Wilson’s principal injury was to his back for which he was treated. At the time of the trial it bothered him when he tried to lift anything. Neither of the parties were rendered unconscious and neither sustained any fractured bones.

It appears to be well settled that a trial court may require a remittitur of excessive damages as a condition to overruling a motion for new trial, and that when, as here, such remittitur is filed and such excessive damages are released error is not presented. I cannot say that the amount of the judgment of the trial court did not afford appellees just compensation for their injuries nor that the trial court abused his discretion in requiring the remittiturs as a condition to overruling appellants’ motion for new trial.

I would reverse the judgment of the trial court and remand the cause because of what I believe was an erroneous submission.