Phoenix Refining Co. v. Powell

251 S.W.2d 892, 1952 Tex. App. LEXIS 1727
CourtCourt of Appeals of Texas
DecidedSeptember 10, 1952
Docket12423
StatusPublished
Cited by72 cases

This text of 251 S.W.2d 892 (Phoenix Refining Co. v. Powell) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phoenix Refining Co. v. Powell, 251 S.W.2d 892, 1952 Tex. App. LEXIS 1727 (Tex. Ct. App. 1952).

Opinions

NORVELL, Justice.

This litigation, according to the statement of attorney for appellant, resulted from “the worst and probably the last accident to occur at the Burnell underpass” on U. S. Highway No. 181, between the towns of Kenedy and Pettus, Texas. Vail Ennis, the sheriff of Bee County, testified that from fifteen to twenty people had been killed in accidents at the underpass, and it now appears that the route of the highway has been changed in the locality, probably as a result of the collision which occasioned this lawsuit.

The vehicles involved were a flat-topped truck owned by appellee, E. L. Powell and Sons Trucking Company (a co-partnership composed of E. L. Powell, H. H. Powell and B. L. Powell), and a gasoline tank truck owned by Phoenix Refining Company, Inc. The Powell truck was travelling in a southerly direction and was loaded with two separators or heat treaters designed for oil field use, which were constructed of heavy steel plate and were approximately thirty feet in length. The tank truck was travelling north and carried approximately 4000 gallons of gasoline which became ignited immediately following the collision. Ralph L. Grimes, the driver of -the Phoenix truck, a passenger riding with him and M. F. Redick, the driver of the Powell truck, were all killed as a result of the collision. Redick was trapped in the cab of his overturned truck and could not be extricated before the burning gasoline reached^him and caused his death.

It is indicated that this is perhaps the first of a number of lawsuits. Phoenix, as plaintiff, sued Powell for the value of its truck and Powell, by cross-action, sued to recover for the destruction of its vehicle. Upon jury findings, judgment was rendered that neither party recover from the other. Phoenix only has appealed. As there was no surviving eye witness, the events and occurrences of the night of October 25, 1950, must be reconstructed upon a circumstantial evidence basis. It is appellant’s contention that the jury findings for Powell upon which the judgment is based are supported by mere surmise and conjecture and that consequently the judgment can not stand. Law questions of “no evidence,” as distinguished from the fact contentions of “insufficient evidence” or “overwhelming preponderance of the evidence,” only are raised. King v. King, Tex.Sup., 244 S.W.2d 660. Appellant’s prayer is for rendition of judgment in its favor and not for a remand of the case.

The case was submitted upon a total of twenty-nine issues. Those pertinent to our inquiry are the following:

Question No. 1: “Do you find from a preponderance of the evidence that the driver of the Powell truck drove said truck to his left-hand side of the highway as he approached the point of the accident in question ? Answer: Yes.”
Question No. 1-a: “Do you find from a preponderance of the evidence-that such act, if any (inquired about in Question No. 1), was negligence? Answer: No.”
Question No. 2: “Do you find from a preponderance of the evidence that such act, if any (inquired about in Question No. 1), was a proximate cause of the accident and the damages resulting therefrom? Answer: Yes.”
Question No. 26: “Do you find from a preponderance of the evidence that just prior to and at the time of the accident in question the driver of the Powell truck was acting under an emergency? Answer: Yes.”
Question No. 27: “Do you find from a preponderance of the evidence that after the emergency, if any, arose, the driver of the Powell truck, did what an ordinary prudent person would have done under the same or similar circumstances? Answer: Yes.”
[895]*895Question No. 28: “Do you find from a preponderance of the evidence that the accident in question was not the result of -an unavoidable accident? Answer: It was an unavoidable accident.”

It is appellant’s contention that it is entitled to judgment upon the jury’s finding that the driver of the Powell truck had driven his vehicle upon his left-hand side of the highway, which was a violation of the penal code and hence negligence per se, and that such action was a .proximate cause of the damages resulting from the collision.

It is apparently undisputed that the “driver of the Powell truck drove said truck to his left-hand side of the highway.” (An operator attempting to control the movements of a motor vehicle which is defective in certain of its parts is commonly regarded as “driving” the vehicle despite a failure to exercise fully effective control. “To drive” means “to give a forward impetus to; to propel; impel.” Shafer v. Glander, 153 Ohio St. 483, 92 N.E.2d 601, 604; Bosse v. Marye, 80 Cal.App. 109, 250 P. 693. “The person in control of the motive power of a motor vehicle is said to be ‘driving’ it.” Grant v. Chicago, M. & St. P. Ry. Co., 78 Mont. 97, 252 P. 382, 385, citing Commonwealth v. Crowninshield, 187 Mass. 221, 72 N.E. 963, 68 L.R.A. 245.) Appellee argues that this driving on the left-hand side of the road in violation of the penal code was excusable in that its driver “attempted to make such application of his-brakes as he could under the circumstances and otherwise attempted to control the movement of the vehicle,” but was unable to do so through no negligence on his part because of a suddenly deflated tire. Appellant’s contention counter to this is that there is no evidence, as distinguished from mere surmise and conjecture, raising the issue of excuse for the violation of a penal statute.

The Texas rule with reference to civilly excusable violations of the penal code seems in accord with the general American rule and is fairly clear, except perhaps as to the burden of proof in certain factual and procedural situations.

Questions involving excusable violations of the criminal law and the civil consequences resulting therefrom have been discussed in a number of comparatively recent law review articles. 46 Harvard Law Review 453, 25 Texas Law Review 424, and 27 Texas Law Review 866. Perhaps the 'best considered of these treatments is that of Clarence Morris, styled, “The Role of Criminal Statutes in Negligence Actions,” contained in 49 Columbia Law Review 21, and Morris’, “Studies in the Law of Torts,” p. 141.

After pointing out that in certain instances the adoption of a penal státute may introduce new grounds of liability into the civil law, and that consequently' the adoption of criminal legislation may result in something more than a substitution of another standard for that of the reasonably prudent man, Morris nevertheless points out that:

“In many instances * * * the substitution of the criminal proscription for the reasonably-prudent-man formula is the use of a more exact standard to accomplish with greater smoothness the results that the common law had always tried to reach. But even though the criminal proscription normally is a good test of negligence, if it is used inflexibly' in all cases it may produce some untoward results. The doctrine of negligence per se purports to rob the judge of judicial functions. It places responsibilities on a legislature that could not possibly conceive of all cases to which its proscription might ?4pply and that has not provided for civil liability, and that, therefore, surely has not considered proper limitations and excuses. At times violation of the criminal law is not unreasonable.

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Bluebook (online)
251 S.W.2d 892, 1952 Tex. App. LEXIS 1727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-refining-co-v-powell-texapp-1952.