Olds Motor Works v. Churchill , 1915 Tex. App. LEXIS 422 ( 1915 )

BUCK, J.

This suit was filed in the Sixty-Seventh district court of Tarrant county, Tex., by E. E. Churchill against the Olds Motor Works, the Oldsmobile Company, and W. H. Owens, to recover damages for personal injuries alleged to have been received by plaintiff in an accident occurring in the city of Ft. Worth August 16, 1918. From a verdict and judgment for plaintiff for $8,500 against the Olds Motor Works, the latter appeals.

The plaintiff alleged in his petition that the defendant companies had contracted on August 16, 1913, through their agent, D. E. Ford, to sell “a large and powerful automobile” to defendant W. H. Owens, of Denton, Tex., and that delivery of said car was to be made at Ft. Worth, and' that said Ford was at Ft. Worth on said day to demonstrate said automobile and teach said Owens how to run it, and that, before the delivery of said car, the said Ford, acting for said defendant companies, together with said Owens, were operating said car when the accident occurred resulting in the injuries to plaintiff. Negligence was alleged against Ford as agent and against both defendant companies, as well as Owens.

Owens answered by general denial and general demurrer. The defendant companies answered that the car in question had formerly belonged to the defendant Olds Motor Works, that Ford was its agent, but alleged that said car had, prior to the accident, been sold to Owens, and it thereupon ceased to be the property of the Olds Motor Works, and further denied that said car was being' operated by said Ford at the time of the accident, or was under his control.

The cause was submitted on nine special issues, which were answered favorably to plaintiff on the questions: (1) Of the Olds Motor Works’ ownership of the car; (2) of the car’s being operated by its agent Ford at the time of the accident; (3) as to the question of said Olds Motor Works’ negligence; and (4) as to the plaintiff’s lack of contributory negligence — whereupon a judgment was rendered by the court in favor of Owens and the Oldsmobile Company but against the Olds Motor Works in the sum named.

The main issue involved in the trial court was as to the ownership of the car, and ás to whether, at the time of the accident, it was under the control and being operated by Owens or by Ford, as the agent of the defendant companies. Negligence in the operation of the car was practically admitted and amply sustained by the evidence.

D. E. Ford, the agent of the appellant, met W. H. Owens by appointment at Ft. Worth on the afternoon of Saturday, August 16th, to endeavor to sell him an automobile. They drove around the city in the car Ford was trying to sell, during which drive Owens operated the car for some 15 minutes and satisfied Ford, as the latter states, that he was capable of operating the car without danger of accident. After the drive, they went to the garage, where Ford was keeping the ear and examined the car somewhat in detail. Owens then signed an order for the car, according to the terms of which order the car was to be delivered at Ft. Worth, Tex., f. o. b., on said August 16, 1913, at an agreed price, which order was also signed by said D. E. Ford, salesman.

It was agreed that Owens and Ford should go to Denton the following Monday morning and be there at the opening of the bank where Owens claimed to have his account, whereupon Owens should pay the purchase price and the car should be delivered to him by Ford. After supper Saturday night Owens and Ford went driving again, Owens driving the car, and at about 8 p. m., while he was attempting to turn from Weatherford street onto Commerce street, the car ran into plaintiff and his little son, knocked them down, and dragged them for some distance.

[1] In its ninth assignment, appellant complains of the failure and refusal of the court to give its special charge No. 2, which was as follows:

“If you should believe from the evidence that in the afternoon, before plaintiff received his injury, D. E. Ford and W. H. Owens operated on the streets of Ft. Worth the car that after-wards struck plaintiff, and that Owens examined said car, and that Owens definitely agreed with Ford that he would take said car at an agreed price and would pay for the same, and that nothing remained to be done in order to complete the transaction between said parties, except for Owens to pay the price and receive complete delivery, and that, after such agreement was made (if the same was made), the car was again taken out on the streets by Owens or by him and Ford and was being operated by Owens at the time of the injury to plaintiff, then you will find, in answer to the special issue relating to that matter, that the title to the car in question had passed to Owens before the injury to plaintiff, and said car was not the property of the Olds Motor1 Works at that time.”

Issue No. 6, submitted to the jury, was: “At the time of the injury, if any, to the plaintiff, who owned the automobile that was being operated?” To which question the jury answered: “Olds Motor Works.” Nowhere in its charge did the court submit any instructions to the jury as to what in law would constitute a passing of title from appellant to W. I-I. Owens, and the jury were left to decide a mixed question of fact and law involved in this issue without any instructions from the court to guide them. The special charge submitted by appellant, quoted above, was incorrect, in that it' omitted at least one important element of the conditions which would constitute a sale, to wit, the intentions of the parties to the transactions. Hence we hold that the court did not err in refusing to give said requested charge. Therefore this assignment will he overruled.

[2] But the tenth assignment presents a more serious question. This assignment is as follows:

“Even if this defendant was not entitled to have its special charge No. 2 given in the exact form presented, still said special chai’ge operated as a request to give the jury correct and appropriate instructions as to the legal principles that should guide and control them in determining whether or not the ownership of the automobile had passed from the Olds Motor Works to W. H. Owens; hence the failure of the court to give the jury correct and appropriate instructions on the subject mentioned was error.”

The appellant, in its objections to the court’s charge, urged:

“There is error in submitting to the jury said question No. 6, the issue of legal ownership of the automobile, without giving the jury any instructions to guide them in the determination of such question of ownership.”

And its amended motion for new trial alleged error in the court’s failure to give appropriate instructions upon this issue. Hence we find that the question whether error was committed in this respect is presented to us in proper form for our consideration. With reference to this matter, we believe the rule to be that when the court fails to charge on a material issue, and a special charge is requested, though incorrect, but sufficient to call the court’s attention to the omission, the court should submit a proper instruction on that issue; and if proper exception is taken to such failure of the court, and a separate assignment is presented, both in the motion for new trial in the court below and in ap■pellant’s brief, he may successfully urge the error of omission in the appellate court. But when the court has submitted a correct general presentation of the issue, if either party desires a fuller charge on that issue, he must tender to the court a correct charge, and, upon his failure to do so, he cannot avail himself of the court’s omission. Railway v. Cusenberry, 86 Tex. 525, 26 S. W. 43; Railway v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Railway v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80 (writ of error denied); Electric Co. v. Harry, 37 Tex. Civ. App. 90, 83 S. W. 737; Cement Co. v. McBrayer, 140 S. W. 388, and cases there cited; Railway Co. v. Browder, 144 S. W. 1042.

In this case the court utterly failed to give the jury any instruction to enlighten them as to the law pertaining to one of the controlling issues, to wit, the ownership of the ’ automobile. Therefore we hold that the duty of the court to give such instruction was sufficiently invoked by the tender of the requested charge No. 2, which, though incorrect or defective in some respects, under the circumstances mentioned sufficiently called the court’s attention to the omission in its ■main charge. Hence the tenth assignment is -sustained.

[3] In view of another trial, it may be well for us to state that the evidence, to the exclusion of'which the first assignment is directed, as to the statement of Owens to Ford, testified to by the latter, to the effect, “He stated to me that as long as he had purchased the car he would like to drive it,” is admissible, and not subject to the objections urged. It is a part of the res gestee of the transaction, and tends to shed light upon what was the real intention of the parties at the time, though its exclusion probably does not present reversible error, because practically, or at least in effect, the same testimony was admitted in other portions of Ford’s deposition.

[4] Likewise we think that the part of the question and the answer thereto, to the exclusion of which error is urged in the second assignment, which recites what Mr. Owens said over the phone to his brother about having bought the car, is admissible for the same purpose, and, if offered independent of that portion thereof referring to what Mr. Ford wrote his sales manager, should be admitted.

As to other assignments, we do not feel that they pertain to matters likely to arise upon another trial.

For the error mentioned, the judgment of the trial court is "reversed and the cause remanded as to appellant and appellee Churchill, and is undisturbed as to the other two appellees.

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