Barron v. James

• Decision Date: 21 February 1946
• Docket Number: No. 4315.,4315.
• Citation: 198 S.W.2d 245
• Parties: BARRON et al. v. JAMES.
• Court: Texas Court of Appeals

Page 245

198 S.W.2d 245

BARRON et al. v. JAMES.

No. 4315.

Court of Civil Appeals of Texas. Beaumont.

February 21, 1946.

Rehearing Denied May 2, 1946.

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

Action for personal injuries and property damages by Pat James against W. E. Barron and another. Judgment for plaintiff and defendants appeal.

Affirmed.

Judgment reversed 198 S.W.2d 256.

A. D. Dyess, of Houston, for appellants.

Campbell & Foreman, of Livingston, Pitts & Liles, and Effie Harper, all of Conroe, for appellee.

WALKER, Justice.

Pat James brought this action in the District Court of Montgomery county against W. E. Barron and Clifton Upchurch to recover damages for injuries which he sustained in a collision with an automobile bus owned by Defendant Barron and driven by Defendant Upchurch under employment by Defendant Barron. Plaintiff also prayed for recovery of his medical expenses and for the value of a horse owned and ridden by him at the time of the collision and destroyed because of injuries received in the collision. From a judgment in behalf of plaintiff, defendants have appealed.

The incident occurred on September 13, 1944, at about 9:30 o'clock a. m., a mile or so west of Montgomery on State Highway No. 105. Plaintiff was riding along the south side of the road, proceeding in an easterly direction toward Montgomery, and the bus approached him from the rear. The road ran up a long slope and the collision occurred a short distance below the crest of the hill. Plaintiff and his horse were seriously injured. At the time, the horse was rearing and twisting about. Plaintiff alleged that a car, travelling at a high rate of speed came over the hill from Montgomery and frightened the horse; and pleaded negligence by Defendants as the proximate cause of his injuries.

In addition to a general denial Defendants specially alleged contributory negligence, unavoidable accident, and that the collision was unforeseeable by the driver of the bus.

The trial was to a jury. In response to various Special Issues the jury found that Defendant Upchurch: (1) failed to have the bus under proper control immediately before and at the place of the collision; (2) that he failed to keep a proper lookout as he approached and undertook to pass plaintiff; and (3) that he failed to reduce the speed of the bus before undertaking to pass plaintiff. His conduct, in each respect, was found to be negligent and, in each respect, approximate cause of the collision. The evidence established as a matter of law that Defendant Upchurch did not sound his horn and that he did not stop the bus before the collision; and further, that he did not turn to the left a sufficient distance to avoid the collision. The jury found that the failure to sound the horn and to stop the bus were each negligent and a proximate cause of the collision. They also found that after he observed the frightened condition of Plaintiff's horse, Defendant Upchurch could have driven sufficiently far to the left to have avoided coming in contact with plaintiff's horse, and that his failure so to do was negligence and a proximate cause of the collision.

The jury found that the collision was not the result of an unavoidable accident, and that plaintiff did not rein his horse into the path of the approaching bus. Plaintiff's damages were assessed at $3,500.

On these findings, and the stipulation of the parties that the value of the horse was $50, the trial court rendered judgment in behalf of plaintiff against defendants for $3,550

Defendants assign error under Points 1 to 21, inclusive, to the order of the trial court overruling a plea of privilege, but these Points raise matters not before us. Before this appeal was filed defendants attempted to perfect an appeal directly from this order but did not file their record in this court within the time provided by Rule 385. They subsequently filed a transcript and statement of facts on their appeal from the judgment on the merits but these records did not contain the plea of privilege and the proceedings had thereunder; and as a basis for reviewing the order overruling the plea on this appeal from the final judgment they tendered a supplemental transcript and statement of facts covering said plea and said proceedings. Defendants' motions for leave to file this supplemental transcript and statement of facts were denied, and we adhere to the ruling. It appears from the supplemental records tendered for filing, and from defendants' brief as well, that this plea was controverted by the plaintiff and was heard and overruled by the trial court immediately before the commencement of the trial on the merits, and that the order overruling the plea and the judgment on the merits were rendered at the same term of court. We agree with defendants that under the decision in Smith Bros. Grain Co. v. Windsor & Stanley, Tex.Com.App., 255 S.W. 158, an order overruling a plea of privilege can be reviewed on an appeal from a judgment on the merits, if both the order and the judgment are rendered at the same term of court. However, this right of review is not available to the defendants.

Under Points 1 to 21, inclusive, defendants have not brought forward anything showing that the trial court lacked jurisdiction to overrule the plea and try the case on the merits. They may, or may not, have demonstrated that the proceedings under the plea were erroneous; but the matters complained of did not affect the trial court's jurisdiction (in the sense of power, as distinguished from right, to try the merits) and at least in this instance, whether in all others or not, complaint of all these matters in a proper motion for new trial after final judgment was a prerequisite to this appeal under Texas Rules of Civil Procedure, rules 320 and 374, the merits of this cause having been tried to a jury. The only assignment appearing in the motion for a new trial filed by the defendants after judgment on the merits reads as follows: "The Court erred in entering upon the trial of this case upon its merits when the plaintiff had wholly failed to discharge the burden cast upon him by law upon the timely filing by the defendants of a Plea of Privilege herein to be sued in the county of their residence —to-wit, Grimes County, Texas; and every action of this Court, including its act of entering judgment upon the merits of this cause in favor of the plaintiff, is wholly void, the Court having no jurisdiction of this cause or of these defendants because of improper venue." As stated, defendants have not demonstrated any lack of jurisdiction to try the merits of the cause, and this specification of error is too general to meet the requirements of Rules 321 and 322 and of Rules 320 and 374, at least as regards the matters complained of in Points 1 thru 21. Accordingly, defendants have no basis in the record whereby they may review the order overruling the plea of privilege, and no purpose would be served by filing the supplemental transcript and statement of facts.

The supplemental transcript tendered shows that defendants filed a motion for new trial to the order overruling the plea of privilege, and subsequently amended it; but there is no provision in the Rules for a motion for new trial from such an order. At any rate, this proceeding was not related to the motion for new trial on the merits.

As a matter of fact, it seems to be held in some decisions that if defendants expect to review an order overruling a plea of privilege on an appeal from a final judgment on the merits they must identify the order overruling the plea in the appeal bond. Clark v. Dallas Joint Stock Land Bank, Tex.Civ. App., 153 S.W.2d 668; Zurich General Accident & Liability Ins. Co. v. Dyess, Tex. Civ.App., 167 S.W.2d 294. We note that defendants' appeal bond does not refer to the order overruling the plea of privilege.

Under Points 22 and 23 defendants assign error to the trial court's order overruling certain exceptions to the petition. These Points are overruled. The allegations referred to in Point 22 are not in the petition as copied in the transcript; plaintiff's brief states that these allegations were stricken by the trial court. The omissions complained of in Point 23 were supplied to some extent in paragraph 7 of the petition, and if the trial court erred to any extent in overruling the exception referred to in Point 23, it is not apparent that defendants sustained any harm.

Under Points 24 to 36, and 66 to 83, inclusive, defendants assign error on the ground that the findings of negligence and proximate cause are not supported by the evidence. These Points are overruled. The evidence supports the findings.

There is evidence of the following matters: At the place where the accident occurred, the road ran up the slope of a hill in an easterly direction toward Montgomery. Back toward the west it descended the hill some 200 yards to a level space, which is sometimes referred to in the record as "the draw," and ran thence some 300 yards up the face of another hill, past the house of one Kate Lemon, and on to Dobbin. There was apparently a slight curve where the road crossed the draw. The country was open; a person on the road near Kate Lemon's house could observe the course of the road down into the level space and up the opposite hill along which plaintiff was riding when struck. The collision occurred a short distance, perhaps 100 yards, below the crest of this last mentioned hill. At that point, plaintiff could see the road up to the top of the hill but he could not observe the reverse slope; a car approaching him from Montgomery would not be seen by him until it faced him from the top of the hill.

The road was topped with gravel, about 22 or 23 feet wide. Where the collision occurred, the roadbed fell away on either side to a shallow ditch which was covered with grass and was quite dry on September 13, 1944. Fences standing well back from the lines...