Airline Motor Coaches v. Fields

• Decision Date: 29 January 1942
• Docket Number: No. 3909.,3909.
• Citation: Airline Motor Coaches v. Fields, 159 S.W.2d 187 (Tex. App. 1942)
• Parties: AIRLINE MOTOR COACHES, Inc., v. FIELDS et al.
• Court: Texas Court of Appeals

Page 187

159 S.W.2d 187

AIRLINE MOTOR COACHES, Inc., v. FIELDS et al.

No. 3909.

Court of Civil Appeals of Texas. Beaumont.

January 29, 1942.

Rehearing Denied February 25, 1942.

Appeal from District Court, Angelina County; J. W. Chandler, Judge.

Action by Dee Fields against Airline Motor Coaches, Incorporated, and others. From a judgment for plaintiff, defendant named appeals.

Affirmed.

Sewell, Taylor, Morris & Connally and Ben G. Sewell, all of Houston, and Musslewhite & Fenley, of Lufkin, for appellant.

Mantooth & Denman and Collins, Williams & Garrison, all of Lufkin, Troy T. Stokes, of Houston, Lightfoot, Robertson & Gano, of Ft. Worth, and Baker, Botts, Andrews & Wharton, of Houston, for appellees.

WALKER, Chief Justice.

On the 10th day of June, 1940, there was a collision on highway No. 59 in Harris County between a bus owned and operated by appellant, Airline Motor Coaches, Inc., and a laundry truck owned and operated by appellee, W. G. Smith, and a lumber truck owned and operated by appellees, G. R. and Ben Ogletree. Appellee, Dee Field, a fare paying passenger on appellant's bus, was injured in the collision, and instituted this suit in district court of Angelina county against appellant and appellee Smith and the driver of the laundry truck, Homer Davis, for the damages suffered by him in the collision. Appellant impleaded G. R. and Ben Ogletree, the owners of the lumber truck, and their driver, Earl McAllister. The jury convicted appellant of certain acts of actionable negligence, and acquitted the drivers of the laundry truck and of the lumber truck of negligence, and found that the "acts" of the drivers of the laundry truck and the lumber truck were not the sole proximate cause of the collision, and that the collision was not the result of an unavoidable accident, and assessed appellee's damages at the sum of $7,500. On the verdict, judgment was in favor of appellee, Dee Fields, against appellant for the damages assessed by the jury, and that this appellee recover nothing against appellees, W. G. Smith and his driver, Homer Davis. Appellant was denied judgment over against appellees, W. G. Smith and his driver, Homer Davis, and against appellees G. R. and Ben Ogletree, and their driver Earl McAllister; appellant was also denied contribution against these appellees. Appellant has duly prosecuted its appeal to this court.

The court in its charge to the jury made the following submission of the issue of unavoidable accident, by special issue No. 94:

"Was the collision in question an unavoidable accident?

"Answer yes or no.

"Unless you find from a preponderance of the evidence that the collision in question was not an unavoidable accident you will answer the above issue `Yes,' but otherwise you will answer it `No'."

In connection with special issue No. 94, the court submitted the following definition of "unavoidable accident": "By unavoidable accident is meant the unexpected happening of an event which was not proximately caused by the negligence of Forest King."

Appellant reserved exceptions to this definition by the court sufficient to require the court to submit the following definition of unavoidable accident: "By unavoidable accident is meant the unexpected happening of an event which occurred without having been proximately caused by the negligence, if any, of the driver of the motor bus of Airline Motor Coaches, Inc., the driver of the lumber truck of Ogletree Lumber Company or the driver of the laundry truck of W. G. Smith."

When the court first submitted his charge to appellant for exceptions, it contained the definition submitted to the jury. Thereupon appellant reserved its exceptions to the definition, when the following proceedings were had:

"Upon the presentation of such objection the Court made his ruling and changed his charge as follows:

"In view of the foregoing objections and exceptions urged thereto by Airline Motor Coaches, Inc., the Court is now changing his main charge to read as follows, as shown by Special Issue No. 94 with the accompanying definition:

"By unavoidable accident is meant the unexpected happening of an event which occurred without having been proximately caused by the negligence, if any, of the driver of the motor bus of Airline Motor Coaches, Inc., the driver of the lumber truck of Ogletree Lumber Company or the driver of the laundry truck of W. G. Smith.

"The defendant, Airline Motor Coaches, Inc., then objected to such definition of unavoidable accident as follows:

"Defendant, Airline Motor Coaches, Inc. further objects and excepts to said definition of the term `unavoidable accident' following Special Issue No. 94 * * *" setting out the objection in full; it is objection No. 20.

"Upon consideration of such latter objection the Court made his ruling and disposed of said objection as follows:

"Now, in view of the latter objection and exception made by the defendant Airline Motor Coaches, Inc. to the Court's charge, after the Court has changed his charge to conform with the first objection and exception made thereto as to the form and manner of submitting `unavoidable accident', the Court now concludes to submit the issue as originally contained in the Court's charge but only doing so in view of the last objection and exception made by the defendant Airline Motor Coaches, Inc., after the Court had agreed to change his definition to conform with their exception and suggestion that the Court should include in said definition the defendants other than the Airline Motor Coaches, Inc. Moreover, the Court has requested the attorneys for the defendant, Airline Motor Coaches, Inc. to prepare a definition of `unavoidable accident' which they have declined to do and submit the same to the Court. The defendant Airline Motor Coaches, Inc. did not object to the definition of `unavoidable accident' for the failure to include the negligence of the plaintiff, Dee Fields.

"No further objections were made to the Court's charge by defendant, Airline Motor Coaches, Inc."

Appellant was required to make an election of the theory on which it wanted the case submitted to the jury. When the court submitted a definition to appellant fully meeting the exceptions against the first definition, then appellant did not have the right to reserve exceptions against the amended charge, calling upon the court to define the term as originally defined. By its exceptions, appellant put the court to an election on the definition he submitted, and appellant can not now complain of the court's election.

If we are in error in our conclusion on estoppel, then we say the definition was not erroneous. In the ordinary negligence case, as between the plaintiff and one defendant, no difficulty should now be incurred in submitting to the jury a proper definition of unavoidable accident. Dallas Ry. & Terminal Co. v. Darden, Tex.Com. App., 38 S.W.2d 777; Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125; Thurman v. Chandler, 125 Tex. 34, 81 S.W.2d 489; Texas & P. Ry. Co. v. Edwards, Tex.Com.App., 36 S.W.2d 477; Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 128 S.W.2d 956; Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669. The difficulty in this case arises out of the confusion in authorities in attempting to define the term "unavoidable accident" as between two or more defendants. Hicks v. Brown, Tex. Civ.App., 128 S.W.2d 884; Glazer v. Wheeler, Tex.Civ.App., 130 S.W.2d 353; Dallas Ry. & Terminal Co. v. Boland, Tex.Civ. App., 53 S.W.2d 158; Johnson v. Hodges, Tex.Civ.App., 121 S.W.2d 371; Dallas Ry. & Term. Co. v. Redman, Tex.Civ.App., 113 S.W.2d 262; Southern Transp. Co. v. Adams, Tex.Civ.App., 141 S.W.2d 739; Yellow Cab Co. v. Underwood, Tex.Civ. App., 144 S.W.2d 291; Anizan v. Paquette, Tex.Civ.App., 113 S.W.2d 196; Houston Oxygen Co. v. Davis, Tex.Civ.App., 145 S.W.2d 300. The point was again before the Supreme Court in Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790, where it was said that in this type of case—two or more defendants—the question of unavoidable accident should be submitted as to "all of the parties involved, by including in the definition the term `unavoidable accident' each of the acting parties involved in the accident or catastrophe which resulted in the injury."

Appellant insists that by the court's definition it suffered injury in the following respects: (1) This "controlling defensive theory was in reality not submitted at all." (2) "In the second place, the approval of the submission of `unavoidable accident' in a case involving two or more joint tort-feasors, simply inquiring as to whether the collision was not proximately caused by the negligence of one of them, would make a farce of the defensive theory of unavoidable accident. The plaintiff would simply look through the list of joint tort-feasors—the active participants in the collision or event resulting in his injury—and select the least culpable of the lot, and have the court submit an issue as to whether the collision was not an unavoidable accident, defining that term as an event not proximately caused by the negligence of that particular party. Worse than that, if approval is to be given to the submission of `unavoidable accident' by simply requiring that the plaintiff obtain a negative answer to an issue inquiring as to whether the collision was not proximately caused by the negligence of one of the defendants, the plaintiff could always take the position that `unavoidable accident' was in fact submitted in that portion of the court's charge inquiring as to whether such defendant was negligent in any of the respects relied upon for recovery." (3) The definition "had the effect of singling it out from the other participants in the collision and placing the spotlight of inquiry upon the bus driver alone." (4) "Another fallacy in the argument that a definition of `unavoidable accident' which omits the mention of one or more of the active participants in the...