Barclay v. C. C. Pitts Sand & Gravel Co.

• Decision Date: 17 February 1965
• Docket Number: No. A-10199,A-10199
• Citation: 387 S.W.2d 644
• Parties: A. G. BARCLAY, Petitioner, v. C. C. PITTS SAND AND GRAVEL COMPANY, Respondent.
• Court: Texas Supreme Court

Page 644

387 S.W.2d 644

A. G. BARCLAY, Petitioner, v. C. C. PITTS SAND AND GRAVEL COMPANY, Respondent.

No. A-10199.

Supreme Court of Texas.

Feb. 17, 1965.

Rehearing Denied March 17, 1965.

Short & Smith, Wichita Falls, for petitioner.

Jones, Fillmore, Robinson & Lambert, Wichita Falls, for respondent.

WALKER, Justice.

This suit was brought by A. G. Barchlay, petitioner, to recover the damages he sustained when his automobile ran into a truck owned by C. C. Pitts, respondent, who is engaged in business under the name of C. C. Pitts Sand and Gravel. Respondent's employee, Joe Bollman, was the driver of the truck. The jury acquitted petitioner of contributory negligence and found that the collision was proximately caused by Bollman's failure to keep his truck under proper control. Judgment was rendered on the verdict in petitioner's favor, but the Court of Civil Appeals concluded that the proper control issue was an improper general submission of negligence. The judgment of the trial court was accordingly reversed and the cause remanded for a new trial. 377 S.W.2d 750.

We granted petitioner's application for writ of error to consider the holding on which the Court of Civil Appeals based its judgment. Respondent had a number of points of error there which, if sustained, would have required that judgment be rendered in his favor. These points were overruled by the intermediate court, and the questions presented thereby were not brought here by application for writ of error.

The collision occurred at night on two-lane U. S. Highway No. 62 in the State of Oklahoma. Petitioner was driving north. Ahead of him and proceeding in the same direction were two loaded trucks owned and used by respondent in his business of hauling sand, gravel and crushed stone. It was raining and the asphalt pavement of the highway was wet and slick. The lead truck went out of control on a sharp and dangerous curve about 800 feet north of the crest of a hill. It jackknifed and came to a stop with the trailer in the east lane of the pavement and the tractor on the shoulder and in the ditch to the east.

Joe Bollman, who was driving the second truck, was some distance behind when this occurred. After passing the crest of the hill he saw the first truck blocking the highway ahead of him and attempted to 'shut down' his own vehicle. The second truck then went out of control and jackknifed. It stopped at a point about 150 feet north of the crest of the hill with the trailer at right angles to and completely blocking the east traffic lane of the highway. The rear of the trailer was some two or three feet west of the center of the pavement, and the tractor was facing in a northwesterly direction. Before Bollman could get out of the truck, petitioner's automobile topped the hill and started down the slope to the north. Petitioner applied his brakes when he saw the second truck, but was unable to stop and skidded into the side of the trailer. He was seriously injured and his automobile was damaged extensively in the collision.

Petitioner alleged that Bollman was negligent in driving at an excessive rate of speed, in failing to apply the brakes on his truck properly, in driving with defective brakes, in failing to keep the truck under proper control, and in turning sharply to the left shortly after he drove over the hill. The primary negligence issues submitted by the trial court, however, dealt only with excessive speed, defective brakes and proper control. No additional issues were requested by petitioner. The jury refused to find that Bollman operated the truck at excessive speed or with defective brakes, but found in response to Special Issue No. 7 that he 'failed to keep the truck under proper control at the time and on the occasion in question.' Special Issue No. 8, which inquired whether such failure was a proximate cause of the collision, was also answered in the affirmative. The term 'proper control' was defined in the charge as 'such control that a person of ordinary prudence would have kept under the same or similar circumstances.' Respondent objected to Special Issue No. 7 on the ground that it constituted a general submission and combined several elements in a single issue. He also pointed out that in view of the specific issues concerning excessive speed and defective brakes, the proper control inquiry was a double submission of these two theories of negligence.

Special Issue No. 7 with its accompanying definition is a typical proper control submission. The issue is undoubtedly quite broad and embraces any and every act or omission on the part of a driver which affects his control of the vehicle he is operating. It has been held, for example, to include excessive speed, failure to apply brakes, defective brakes, failure to place automobile in neutral when it stalled, driving too slowly, and failure to turn to the right or left. See Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Schuhmacher Co. v. Holcomb, 142 Tex 332, 177 S.W.2d 951; Choate v. Meredith, Tex.Civ.App., 330 S.W.2d 548 (writ ref. n. r. e.); Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877 (writ ref. n. r. e.). See also Pope, Broad and Narrow Issues, 26 Texas Bar Jour. 921. When all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266. If it is given in that situation, moreover, the specific findings will control what would otherwise be a conflicting answer to the proper control issue. See Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369 (writ ref. n. r. e.).

Petitioner recognizes that the proper control inquiry is general in the sense that it encompasses a number of specific acts or omissions. He argues that it is sanctioned by long usage, and that there are fact situations such as the present case in which submission of the issue should be within the discretion of the trial court. The facts here are somewhat unusual in one respect. Unlike most of the cases where proper control has been submitted, Bollman's truck actually went completely out of control and any want of care on his part was causally related to the collision only in so far as it contributed to his loss of control. These circumstances do not, however, make the proper control issue any less general. And while a vehicle may go out of control as the result of negligence on the part of the driver, loss of control is not in itself an act or omission that might properly be characterized as want of ordinary care.

When a case is submitted on special issues, the court is required to give 'the controlling issues made by the written pleadings and the evidence.' Rule 279, Texas Rules of Civil Procedure. As pointed out in the article cited above, this Rule has been given one meaning in negligence actions and a somewhat different meaning in other types of cases. Reasonably broad issues embracing several distinct and essential elements of a cause of action or defense have been upheld in a number of nonnegligence suits. Even in negligence cases there are a few more or less general inquiries which may be submitted without fragmentation into their factual components. Examples are proper lookout, Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, Traywick v. Goodrich, Tex. Sup., 364 S.W.2d 190; attractive nuisance, Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587; and discovered peril, Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112. It is nevertheless well settled that as a general rule and when the question is properly raised, special issues relating to either primary or contributory negligence should be restricted to specific acts and omissions which have been raised by the pleadings and evidence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613.

Proper control issues have been submitted in many automobile negligence cases, but no decision has been found where the issue was attacked as a general submission encompassing several specific acts or omissions. While the effect of the issue when given without objection has been considered on a number of occasions, the issue itself has never been approved and upheld against such attack by any of our appellate courts. Professor Hodges takes the position that it should not be given if proper objection is made. Hodges, Special Issue Submission in Texas, § 39. We agree with this conclusion. The usual proper control issue is almost but not quite as broad as the submission in Kainer v. Walker, supra. In some but not all cases it encompasses every negligent act and omission raised by the evidence. Petitioner is undoubtedly correct when he says that its use would enable the trial court to eliminate many specific issues, but this end will be better served by resorting to an even more general submission. If one party wishes to submit negligence generally and the adverse party has no objection, the jury can be asked whether the latter failed to exercise ordinary care as was done in the Kainer case. This will not only make it unnecessary to submit any specific negligence issues but will also avoid the confusion that results from giving an issue which is neither truly specific nor altogether general and which frequently includes acts or omissions that are submitted specifically in the same case.

It is doubtful that a jury of laymen will always understand the scope and import of the proper control issue as it is usually submitted. The jurors may not realize for example, that it should be answered in the affirmative if they conclude that the vehicle was being operated at an excessive rate of speed or with defective brakes. And any attempt to define 'proper control' in terms of the specific...