Burnett v. Motyka

• Decision Date: 13 May 1980
• Docket Number: No. 8763,8763
• Citation: 599 S.W.2d 671
• Parties: Ward BURNETT et al., Appellants, v. Charles MOTYKA, Appellee.
• Court: Texas Court of Appeals

Page 671

599 S.W.2d 671

Ward BURNETT et al., Appellants, v. Charles MOTYKA, Appellee.

No. 8763.

Court of Civil Appeals of Texas, Texarkana.

May 13, 1980.

Rehearing Denied June 10, 1980.

Lawrence L. Mealer, Dallas Legal Services Foundation, Inc., Dallas, for appellants.

Herbert Garon, Jr., Oster & Kaufman, Dallas, for appellee.

RAY, Justice.

This is a damage suit. Appellee (plaintiff), Charles Motyka, brought suit against appellants (defendants), Ward Burnett and his nineteen-year-old daughter Wanda Burnett, for recovery of damages to his house and garage which resulted from a car colliding with the house. Wanda Burnett was operating the motor vehicle prior to the collision. The case was tried to the court without a jury and judgment was rendered in favor of Charles Motyka for the stipulated damages of $3,566.86. No findings of fact or conclusions of law were requested or filed. The appellants submit four points of error for our consideration.

Ward Burnett claimed that at the time of the accident he was leasing the car from co-defendant, J & R Motors, against whom the Burnetts had filed a cross-claim. The trial court rendered a take nothing judgment against J & R Motors from which no appeal has been taken.

Wanda Burnett was the driver of the vehicle and it was alleged that she was negligent in failing to maintain proper control; failing to keep a proper lookout; failing to apply the brakes; and in driving at an unreasonably high rate of speed. Motyka also asserted that either Ward Burnett or J & R Motors was liable under a theory of negligent entrustment.

On the morning of July 29, 1977, Wanda Burnett had her father's permission to use the vehicle obtained from J & R Motors to pick up her mother from work and then go to school. Wanda testified that while backing the car out of the driveway at her father's house, she attempted to apply the brakes. Wanda insisted that she was pumping the brakes and denied that she was pushing on the accelerator. However, she also testified that "it seemed like when I pumped them the faster the car was going." Wanda stated that the car traveled out of the driveway; collided with a car parked on the other side of the street; continued up Motyka's driveway; collided with a portion of Motyka's garage and then suddenly veered into an alleyway separating Motyka's home from the house next door. At this point, Wanda jumped out of the car. She did not try to turn off the car's ignition. The vehicle proceeded down the alleyway into Motyka's backyard and eventually collided with the rear bedroom of his home.

Several times Wanda testified that she was going fast and that she had never traveled that fast while going in reverse. Motyka testified that he was awakened by a loud "earthquake" noise when the car collided with the wall of the master bedroom where he and his wife were sleeping. Appellee testified that moments after the accident Wanda told him that she had lost control of the car while backing out of her driveway.

Appellants contend that the judgment should be reversed because there was no evidence or insufficient evidence to support the implied findings of the court as to Wanda's negligence and Ward's negligent entrustment.

It is a well settled rule in this State that in a non-jury trial where findings of fact and conclusions of law are not requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex. 1977); Seaman v. Seaman, 425 S.W.2d 339 (Tex. 1968). In determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto, the appellate court can only consider that evidence that is favorable to the judgment and must disregard entirely that which is opposed to it. Lassiter v....