Airline Motor Coaches v. Fields, s. 1921-7978.

• Decision Date: 02 December 1942
• Docket Number: Nos. 1921-7978.,s. 1921-7978.
• Citation: 166 S.W.2d 917
• Parties: AIRLINE MOTOR COACHES, Inc., v. FIELDS et al.
• Court: Texas Supreme Court

166 S.W.2d 917

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

Nos. 1921-7978.

Commission of Appeals of Texas, Section B.

December 2, 1942.

Rehearing Denied January 13, 1943.

Error from Ninth Supreme Judicial District, Angelina County.

Action by Dee Fields against Airline Motor Coaches, Inc., and others for personal injuries, in which named defendant filed a cross-action against codefendants and others for indemnity or contribution in case plaintiff obtained judgment against named defendant. A judgment for plaintiff against named defendant was affirmed by the Court of Civil Appeals, 159 S.W.2d 187, and named defendant brings error.

Reversed and remanded.

Ben G. Sewell and Sewell, Taylor, Morris & Connally, all of Houston, Musslewhite & Fenley, of Lufkin, and Black, Graves & Stayton, of Austin, for petitioner.

K. W. Denman, of Lufkin, for Davis.

Lightfoot, Robertson & Gano, of Fort Worth, for Ogletree.

Collins, Williams & Garrison, of Lufkin, and Troy T. Stokes, of Houston, for Fields.

Baker, Botts, Andrews & Wharton and Denman Moody, all of Houston, for Smith.

SMEDLEY, Commissioner.

After trial before a jury, judgment was rendered in district court in favor of respondent Dee Fields against petitioner Airline Motor Coaches, Inc., for $7500, as compensation for injuries suffered by Fields in a collision between petitioner's bus, in which Fields was a passenger, and a lumber truck owned by respondents Ben Ogletree and G. R. Ogletree and operated by respondent Earl McAllister. The Court of Civil Appeals affirmed the trial court's judgment. 159 S.W.2d 187.

The suit as originally filed was by respondent Fields as plaintiff against petitioner Airline Motor Coaches, Inc., as defendant. Petitioner by cross action made respondents, the Ogletrees above named, and also respondents G. W. Smith and Homer Davis, parties to the suit. Smith was the owner and Davis was the operator of a laundry truck which was being driven in front of the bus immediately before the collision between the bus and the lumber truck. Petitioner alleged in its cross action that various acts of negligence on the part of the operator of the lumber truck and on the part of the operator of the laundry truck were sole causes of the collision and prayed judgment for indemnity, or in the alternative for contribution, against the owners and operators of the two trucks in the event Fields obtained judgment against it. Respondent Fields by amended petition again complained of petitioner and also complained of W. G. Smith and Homer Davis and prayed for judgment against them but sought no recovery against respondents, the Ogletrees.

The jury by its verdict convicted the driver of the bus of several acts of negligence and exonerated the driver of the lumber truck and the driver of the laundry truck. The jury found further that the collision was not an unavoidable accident.

The writ of error was granted on the assignment that: "The Court of Civil Appeals erred in holding that it was not error for the trial court to define the term `unavoidable accident' as `the unexpected happening of an event which was not proximately caused by the negligence of Forest King.'" King was the driver of the bus.

In connection with the special issue submitting the question of unavoidable accident the court gave to the jury the definition set out in the above quoted assignment of error. A supplemental transcript contains a full statement by the trial court showing the manner in which the issue as to unavoidable accident and definitions were drawn by the court and presented to counsel, the objections made by counsel and the actions taken by the court in disposing of the objections. The charge as originally prepared and submitted to counsel contained the following issue and definition:

                                        "Special Issue No. 94
                

"Was the collision in question an unavoidable accident?

"Answer `Yes' or `No.'

"Answer ____.

"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'.

"By `unavoidable accident' is meant the unexpected happening of an event which was not proximately caused or proximately contributed to by the negligence of Forest King."

Petitioner objected at length to the definition of unavoidable accident, on three grounds. The first objection is directed to the phrase "or proximately contributed to". The second objection is that petitioner, the defendant, is entitled to have the issue so framed and the term "unavoidable accident" so defined as to inquire of the jury whether or not the collision was an unavoidable accident as between the driver of the passenger bus and the driver of the lumber truck, and also whether or not the collision was an unavoidable accident as between the operator of the passenger bus and the driver of the laundry truck. The third objection is as follows: "And is further entitled to have said issue so submitted to the jury as to inquire of them as to whether the collision in question was an unavoidable accident from the standpoint of the drivers of each of the three vehicles alleged to have been involved therein, that is to say, not caused or brought about by the negligence, if any, of the driver of any one of the three motor vehicles alleged to have been involved in the collision."

In response to the foregoing objections the court changed the charge so that the definition of unavoidable accident accompanying special issue No. 94 was as follows: "`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 of the driver of the laundry truck of W. G. Smith.'"

Thereupon petitioner made several objections to the definition as changed, one of which was substantially the same as the second objection made to the definition as first given. On account of the objections so made the court again changed the definition of unavoidable accident, returning to the definition as originally given, except that the phrase "or proximately contributed to" was eliminated. The court states in the certificate that he finally concluded to submit the issue as originally contained in the charge only in view of the last objection and exception made by the petitioner after the court had agreed to change the definition to conform to petitioner's exception and suggestion that the defendants other than petitioner should be included in the definition. The court further certifies that he requested counsel for petitioner to prepare and submit to the court a definition of unavoidable accident and that they declined to do so. It was agreed by the parties that the name of respondent Dee Fields should not be included in the definition.

The Court of Civil Appeals held that if the definition of unavoidable accident finally given by the trial court was erroneous petitioner invited the error by its exception, which put the court to an election, and was estopped to complain of the court's election. It held further that the definition was not erroneous. 159 S.W.2d 187.

Since this case was tried in district court before the effective date of the new rules, the correctness of the procedure in that court is to be determined in accordance with the statutes and rules in effect when the case was tried and the construction which has been given those statutes and rules by the decisions. Rule No. 814, Texas Rules of Civil Procedure.

If there was evidence sufficient to raise the issue of unavoidable accident, petitioner, without specially pleading that the injury was the result of an unavoidable accident, was entitled to have the issue submitted to the jury as a substantial defense under the general issue. Galveston, Harrisburg & San Antonio R. Co. v. Washington, 94 Tex. 510, 517, 63 S.W. 534; Colorado & Southern Ry. Co. v. Rowe, Tex. Com.App., 238 S.W. 908; Green v. Texas & Pacific R. Co., 125 Tex. 168, 177, 81 S.W. 2d 669. The purpose to be served in submitting the issue is "to call the matter to the attention of the jury, so that it will not be overlooked, and so that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of." Wheeler v. Glazer, 137 Tex. 341, 347, 153 S.W.2d 449, 452. In our opinion the issue of unavoidable accident was raised by the evidence. It might reasonably be inferred from the evidence, the substance of which...