Canales v. Bank of California

• Decision Date: 12 September 1958
• Docket Number: No. 3390,3390
• Citation: 316 S.W.2d 314
• Parties: Roberto CANALES, Appellant, v. BANK OF CALIFORNIA et al., Appellees.
• Court: Texas Court of Appeals

Page 314

316 S.W.2d 314

Roberto CANALES, Appellant, v. BANK OF CALIFORNIA et al., Appellees.

No. 3390.

Court of Civil Appeals of Texas, Eastland.

Sept. 12, 1958.

Rehearing Denied Oct. 3, 1958.

Park Street, Walter Powell Gray, San Antonio, for appellant.

Rankin, Cherry & Martinez, Hendrichson, Bates & Hall, Edinburg, for appellees.

GRISSOM, Chief Justice.

The Bank of California, as the executor of the estate of Virginia Ridgeway and for the use and benefit of Virginia Nash, her daugher, sued Roberto Canales for damages. It alleged that Mrs. Ridgeway was a passenger in an automobile which was driven by her husband, T. C. Ridgeway, south on farm road 494 near Mission, Texas; that at its intersection with farm road 676, road 494 was a through highway; that there were stop signs at the southwest and northeast corners of 676 at such intersection; that after the Ridgeway automobile entered said intersection and was about three-fourths through it was struck on its right front by an automobile driven east by Canales; that the Ridgeway automobile was knocked one hundred and fifty feet southeast of the intersection; that Mrs. Ridgeway was thrown to the pavement, causing a fractured skull and other injuries from which she 'died immediately'. The Bank alleged Canales did not stop or slow his car but drove east into the intersection in excess of 55 miles per hour, failed to keep a proper lookout, failed to stop at the stop sign, as required by Article 6701d, Sec. 73(b), failed to yield the right of way and failed to apply his brakes in time to avoid striking the Ridgeway car; that, as a result, the Bank paid or became obligated to pay $774.32 and $162, respectively, to two funeral homes and that Mrs. Ridgeway suffered mental and physical pain and anguish to plaintiff's damage in the sum of $15,000; that Mrs. Ridgeway was sixth-two and had a life expectancy of thirteen years; that her daughter, Virginia Nash, was twenty-six and in poor financial circumstances; that for five years Mrs. Ridgeway had contributed $500 per year to her support and would have continued to do so and that Virginia Nash had thereby been damaged $6,500.

Velma Fox and Hazel Siler, daughters of Mr. Ridgeway, as administratrices of his estate, sued Canales for damages resulting from his death. They alleged that Ridgeway was driving south on road 494 when the collision occurred; that Canales was driving east on road 676; that Canales attempted to drive through said intersection when it was already occupied by the Ridgeway automobile; that he drove into said intersection at 55 miles per hour, without stopping at the stop sign; that Mrs. Ridgeway was killed 'instantly' and Mr. Ridgeway died six weeks later and that his automobile was wrecked and was a total loss. Said plaintiffs alleged the collision was caused by the negligence of Canales in failing to stop before entering the intersection, driving at an excessive speed and failing to keep a proper lookout for vehicles approaching or in said intersection before so driving into it.

Said plaintiffs alleged Canales was estopped from denying that his conduct was negligent and unlawful because he had pleaded guilty to a charge of negligent homicide in connection with said collision. They sought to recover the expenses of doctors, nurses, the funeral, transportation of the body to Washington, their expenses and damage to Mr. Ridgeway's automobile. They alleged that Mr. Ridgeway lived for six weeks after the collision and that during most of that time he was 'conscious' and suffered excruciating mental and physical pain, for which they sought $20,000 damages.

Canales answered that the collision was caused by the negligence of Mr. Ridgeway; that Canales was confronted with a sudden emergency not caused by his negligence and under the circumstances he acted as a reasonably prudent person and did everything possible to avoid the collision. He also alleged the collision was the result of an unavoidable accident.

Said cases were consolidated and submitted to a jury. It found that (1) Canales failed to keep a proper lookout which was (2) a proximate cause of the collision; that he (3) failed to stop for a stop sign at the intersection and this (4) was negligence and (5) a proximate cause of the collision and that (6) Canales failed to yield the right of way and (7) this was negligence and (8) a proximate cause of the collision. the jury found that (12) T. C. Ridgeway was not operating his vehicle at an excessive speed.

Issues 16, 17, 18 and 19, the instructions in connection therewith, and the jury's answers thereto are as follows:

'Special Issue No. 16:

'What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence, would reasonably compensate Plaintiff, Bank of California, N.A., as the Executor of the Estate of Virginia Ridgeway, deceased, for the injuries and damages, if any, sustained by Virginia Ridgeway, proximately caused by the happening of the collision in question? Answer in dollars and cents.

'We, the Jury, answer: $9,435.00.

'In connection with the foregoing issue, you may take into consideration funeral expenses, if any, physical and mental pain and suffering by her, if any, from the time of the collision until her death, and the loss of earnings to her estate, if any, by reason of her death.

'Special Issue No. 17:

'What amount of money, if any, do you find from a preponderance of the evidence, would, if paid now in cash, reasonably compensate Plaintiffs, Velma Fox and Hazel Siler, as Joint Administratrices of the Estate of T. C. Ridgeway, deceased, for the reasonably necessary expenses incurred by them on account of the injuries and death of T. C. Ridgeway?

'Answer in dollars and cents.

'We, the Jury, answer: $4,425.00.

'Special Issue No. 18:

'What amount of money, if any, do you find from a preponderance of the evidence, would, if paid now in cash, reasonably compensate Plaintiffs, Velma Fox and Hazel Siler, as Joint Administratrices of the Estate of T. C. Ridgeway, deceased, for mental and physical pain suffered by T. C. Ridgeway as a result of his injuries and death?

'Answer in dollars and cents.

'We, the Jury, answer: $10,000.00.

'In arriving at and in determining your answer to the foregoing question, you will take into consideration and allow to said Joint Administratrices whatever sum of money, if paid now, would represent the fair and reasonable value as compensation for mental and physical pain consciously suffered by T. C. Ridgeway between the time when he received his injuries and the time of his death from such injuries. You must not take into consideration, nor allow any sum to Plaintiffs, for their grief and sorrow suffered on account of decedent's death or loss of his society affection and companionship; nor are you to take into consideration any loss of pecuniary contributions or advice and counsel, or anything other than such conscious paid and suffering as you may have found, if any:

'Special Issue No. 19:

'What amount of money, if any, do you find from a preponderance of the evidence, would, if paid now in cash, reasonably compensate the Plaintiffs, Velma Fox and Hazel Siler as Joint Administratrices of the Estate of T. C. Ridgeway, deceased, for the damage, if any, to the 1951 Ford automobile driven by T. C. Ridgeway proximately caused by Defendant's negligence, if any such negligence you have found?

'Answer in dollars and cents.

'We, the Jury, answer: $1,200.00.'

The court held that all the plaintiffs were entitled to a judgment against Canales based upon said verdict but that, upon motion of the administratrices of the estate of T. C. Ridgeway, $9.57 of the amount found in answer to issue 17 should be remitted because it was that amount in excess of what plaintiffs sued for. Judgment was rendered for the Bank for $9,436, being for damages the jury found, in answer to issue 16, that the representative of the estate of Mrs. Ridgeway should recover because of her injuries, including her funeral expenses, loss of earnings and her pain and suffering. Judgment was rendered for the representatives of Mr. Ridgeway's estate for $15,615.43. Canales has appealed.

Appellant attempts to brief points one through six together but he makes a separate statement under the first and second. His first point is that the court erred in submitting issue 16 and in rendering judgment on the answer thereto because there was no competent evidence to support a finding of damages for paid and suffering, loss of earnings or funeral expenses of Mrs. Ridgeway. The second point is that the court erred in instructing the jury that it could consider said elements of damages. In connection with said points appellant points out the fact that the executor of Mrs. Ridgeway's estate alleged that Mrs. Ridgeway was killed 'immediately'; that said pleadings were never amended; that in connection with issue 16 the court told the jury it could consider the pain and suffering of Mrs. Ridgeway, loss of earnings to her estate and her funeral expenses. Appellant objected to the submission of said issue and to said instruction because they permitted the jury to speculate and consider a pension fund, allowed the jury to speculate on funeral expenses, without limiting them to those actually incurred and that were reasonable and necessary, and permitted them to consider the expenses of cremation, which was not shown to have occurred nor to be reasonable; because it permitted the jury to consider pain and suffering, which was not compensable in the absence of a showing that she was conscious, because there was no evidence of 'conscious' pain and suffering by Mrs. Ridgeway and because the Bank had alleged that Mrs. Ridgeway died 'immediately' after the collision and it was, therefore, estopped to assert damages resulting from 'conscious' pain and suffering. In connection therewith Canales requested an instruction that in finding the amount of damages inquired about...