Broesche v. Bullock, 90

• Decision Date: 27 March 1968
• Docket Number: No. 90,90
• Citation: 427 S.W.2d 89
• Parties: Charles R. BROESCHE et al., Appellants, v. Maxine BULLOCK et vir, Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 89

427 S.W.2d 89

Charles R. BROESCHE et al., Appellants, v.Maxine BULLOCK et vir, Appellees.

No. 90.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 27, 1968.

Rehearing Denied April 24, 1968.

Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, for appellants.

Ralph K. Miller, Jim M. Perdue, Wm. Mac Gann, Miller, Gann & Perdue, Houston, Kenneth Bing, Bing & Willy, Freeport, for appellees .

BARRON, Justice.

This is an appeal by Charles Francis Broesche and his son, Charles Rodney Broesche, defendants in the trial court, from an adverse judgment rendered in favor of plaintiffs below, Maxine Bullock and husband, Walter Dan Bullock, in a negligence action for injuries and damages suffered by Mrs. Bullock.On special issues submitted to the jury, the trial court rendered judgment in favor of appellees for $44,500.00.From the judgment below, appellants, Charles F. Broesche and Charles R. Broesche, have properly perfected their appeal.

At approximately 1:30 o'clock in the afternoon of April 19, 1965, Mrs. Maxine Bullock, accompanied by her two teenage daughters and a friend, drove to or arrived at that portion of the beach of the Gulf of Mexico between Freeport and San Luis Pass in Brazoria County.It was a bright, sunny afternoon.Upon arriving at the beach, Mrs. Bullock parked the 1962 Chevrolet Impala automobile she was driving in a row of cars, each of which, including the Bullock vehicle, was parked headed toward and approximately 50 feet from the water.Mrs. Bullock then got out of the car with a 'patch quilt,' purse and beach towels, spread the quilt (approximately six feet square) with the patch side up and the blue liner side down, on the beach about five or six feet in front of her car.She placed her quilt in line with the other quilts on the beach.She was dressed in cut-off blue jeans and a striped blouse.

Mrs. Bullock's daughters requested and were granted permission by her to use the car to go and get some air mattress floats.The children then got into the car and left, backing the Bullock car out into the beach road behind the row of parked cars and left the scene .Mrs. Bullock then lay down on the quilt face down and, as she testified, proceeded to read a letter.While Mrs. Bullock apparently was in such a position, appellant, Charles Rodney Broesche, then twenty years of age and in his senior year of high school, operating a 1960 Chevrolet Impala and accompanied by three other young men, drove into the parking space previously occupied by the Bullock vehicle, after having been flagged down by a passing Highway Patrolman for 'sandsurfing'--pulling an automobile tire attached to the rear of the car by means of a rope with a rider thereon.The Broesche car was also facing the Gulf when it was parked.After driving into the area, the Broesche boy stopped his car and got out and went to the back of the car to await the Highway Patrolman's arrival.He testified that he did not see anyone in front of his car.The patrolman came up and talked to the boys and told them to put the tire back into the trunk of the car which they did.Broesche then got back into his car and started to back out the way he came in, but the traffic was heavy behind and there was an open space several cars down on his left.Broesche decided to move forward and make a left turn to get back on the road behind the cars.The appellee, Maxine Bullock, was lying on a blanket in front of the open area in which Broesche drove his car, and had been lying on the blanket for some time.Broesche testified that due to his looking backward when he drove into the slot, and due to the fact that Mrs. Bullock was so close to the front of his car that when he got back into the car he could not see her over the hood of his car.There was evidence that Broesche had driven his car to within three or four feet of Mrs. Bullock before he stopped to talk with the patrolman.Broesche apparently did not see Mrs. Bullock and when he went slowly forward toward the Gulf to cut to his left, he ran the car over Mrs. Bullock inflicting severe and painful injuries to her.

Andy Kyzar, a passenger in the Broesche car, testified that he was in the right-hand front seat of the Broesche car and that when they parked, he walked down toward the waters of the Gulf and passed Mrs. Bullock lying on the blanket between the Broesche car and the water and that she was not moving and was apparently asleep.He stayed at the water's edge for a few minutes and came back to get into the car .Mrs. Bullock was apparently still asleep.He thought that Broesche was going to back out of the slot and when Broesche started forward, Kyzar attempted to holler, but, using his phraseology, he tried to speak and nothing came out.Mrs. Bullock, however, denied being asleep but also stated that she was never aware of the presence of the Broesche car, even though it was driven up to only a few feet from her and though the car was parked there for more than ten minutes.Many people were on the beach.Some were lying on the sands of the beach sunbathing, and many were in the water.There is testimony that the beach was noisy.There was testimony from Kyzar that it was not customary for people to sunbathe or lie out on the beach in an open slot between other parked cars.

At the conclusion of the testimony, the trial court submitted substantially the following special issues to the jury: (1)Charles Rodney Broesche's lookout, (2) proximate cause, (3) excessive speed, (4) proximate cause, (5) whether Charles Rodney Broesche was a reckless and incompetent driver, (6) whether Charles Francis Broesche(the father) should have known that his son was a reckless and incompetent driver, (7) whether the father was negligent under the circumstances in allowing the son to drive the car, (8) whether Mrs. Bullock maintained a proper lookout, (9) proximate cause, and (10) the damage issue.The jury found that the Broesche boy failed to keep a proper lookout and that such was a proximate cause of the accident; that his speed was not excessive; that the father should have known that his son was a reckless and incompetent driver, and that it was negligence for the father to permit the son to drive the car; that Mrs. Bullock did not fail to keep a proper lookout.Damages were assessed against appellants, father and son, at $44,500 .00, jointly and severally.

Appellants attack the judgment of the trial court by forty-eight points of error, the substance of which are: failure of the trial court to submit to the jury three groups of special issues inquiring as to whether Mrs. Bullock was negligent; the failure of the trial court to submit the issue of unavoidable accident; points raising the issue that there is no evidence or insufficient evidence to show that Charles R. Broesche was a reckless driver or an incompetent driver; that special issue no. 5 above is duplicitous and multifarious; that there is no evidence or insufficient evidence to sustain the jury's answer to special issue no. 6 above; that the court erred in refusing to submit the issue of proximate cause on the negligent entrustment theory, and that the jury's verdict was grossly excessive.

We first discuss the alleged errors of the trial court regarding the theory of negligent entrustment.The evidence shows that Charles Rodney Broesche, a minor at the time of the accident in question, had received a speeding ticket in October of 1962, a speeding ticket in January of 1963, a warning letter from the Texas Department of Public Safety in April, 1963, a speeding ticket in December of 1963, a ticket for contest of speed in March of 1964, and a speeding ticket in October of 1964.In addition, the young man had received a ticket for running a red light in March of 1964.He was first licensed to drive an automobile when he was 16 years of age, in 1962.Broesche had been driving for only about three years when the accident occurred, and in that brief period of time, he had been cited and paid fines for seven moving traffic violations and had received a letter from the Department of Public Safety reprimanding him for his driving.His father had witnessed other acts of reckless driving, principally, his son's pulling in and out of the driveway too fast and heedlessly .The father had reprimanded and restricted him for his conduct.There is ample evidence that the father, Charles Francis Broesche, knew that his son had received the traffic tickets and had paid fines for same, and that the father had personally witnessed improper and rash acts of his son in connection with his driving.

While proof of only one previous traffic violation is grossly inadequate to establish incompetency or recklessness (Mayer v. Johnson, 148 S.W.2d 454(Tex.Civ.App.), writ dismd., judg. corr.), and proof of two moving violations or accidents within a two year period prior to the accident made the basis of the suit, is probably insufficient (Fambro v. Sparks, 86 Ga.App. 726, 72 S.E.2d 473(Court of Appeals, Georgia), in this case the evidence presents proof of seven citations for moving traffic violations, a warning letter, disciplinary actions and restrictions taken against the minor driver because of his driving.All of the violations occurred within the span of three years prior to the entrustment.We believe that there is evidence and that it is sufficient to show that Charles Rodney Broesche was a reckless and incompetent driver, and that his father had knowledge of same.It is recognized that the proof is difficult on this question, and while it cannot be said that the above evidence or similar evidence is entirely satisfactory, yet there is some evidence, and we believe sufficient evidence, for the submission of appropriate special issues to the jury upon the question of recklessness and incompetency and Mr. Broesche's knowledge thereof.Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, 1067(Tex.Com.App.), opinion adopted;...