Carr v. Gregory, 643

• Decision Date: 28 October 1971
• Docket Number: No. 643,643
• Citation: 472 S.W.2d 819
• Parties: Angie CARR et vir, Appellants, v. Kenneth GREGORY, Appellee.
• Court: Texas Court of Appeals

Page 819

472 S.W.2d 819

Angie CARR et vir, Appellants, v. Kenneth GREGORY, Appellee.

No. 643.

Court of Civil Appeals of Texas Corpus Christi.

Oct. 28, 1971.

Glusing & Sharpe, Nelson Sharpe, Kingsville, for appellants.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, James W. Wray, Jr., Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This suit was instituted by Angie Carr and her husband, J. F. Carr against Kenneth Gregory for damages resulting from a rear-end automobile collision. Trial was to a jury which found that the defendant was driving at an excessive rate of speed which was a proximate cause of the collision, and that he failed to maintain an assured clear distance between his vehicle and the vehicle that was being driven by Mrs. Angie Carr, which was also a proximate cause of the collision. The jury also found that plaintiff, Mrs. Angie Carr, had a reasonable opportunity in the use of ordinary care to give a signal of her intention to stop, that she failed to give such signal to stop as person using ordinary care would have given, and that such failure was a proximate cause of the collision. The damage issues were answered in plaintiffs' favor. Upon receipt of the jury verdict, the trial court entered a judgment that plaintiffs take nothing. Plaintiffs have timely perfected an appeal to this Court. We affirm.

Appellants' first point complains that the trial court erred in denying their motion to disregard the findings of the jury to special issues 17, 18 and 19 because appellant did not violate any legal duty owed to appellee. Special Issue 17 inquired into whether or not Mrs. Carr had a reasonable opportunity to give a signal of her intention to stop; special issue 18, which was conditionally submitted on an affirmative answer to special issue 17, asked whether or not Mrs. Carr failed to give such a signal to stop as a person using ordinary care would have given; special issue 19, also conditionally submitted, called for an answer as to whether or not such failure was a proximate cause of the collision. All issues were answered adverse to appellants and it was on the basis of the answers to these issues that a take nothing judgment was entered.

The motion, as filed by appellants, is styled 'Motion for Judgment'. In effect, it moves that the trial court disregard the answers by the jury to these issues on the ground that there was 'no evidence', and 'insufficient evidence' to support such answers and that they were 'immaterial to the case'. There is no showing in the record that appellants' motion for judgment and to disregard the jury findings was ever presented to or acted upon by the trial court . In that state of the record, the point was not preserved for appellate review. Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App., Waco, 1970, wr. ref. n.r.e.); Moreno v. Jenkins, 436 S.W.2d 620 (Tex .Civ.App., Austin, 1968, wr. ref. n.r.e.).

Irrespective of whether the point was preserved on appeal, there is another reason why the point cannot be sustained. Rule 301, Texas Rules of Civil Procedure, provides, in part, that '* * * the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. * * *' The question of whether appellant violated any legal duty owed to appellee is not a proper ground for disregarding a jury finding and the trial court could not have properly granted appellants' motion on that ground. The motion is not predicated upon any lack of evidence to support the jury's answers to these issues and, therefore, does not come within the rule. Western Hills Hotel, Inc. v. Ferracci, 299 S.W.2d 335 (Tex.Civ.App., Ft.Worth, 1957, wr. dism'd by agrm't).

Our Supreme Court, in C. & R. Transport, Inc. v. Campbell, 406 S.W .2d 191, 194 (Tex.Sup.1966), held:

'A jury's answer to a special issue may be disregarded only when it has no support in the evidence or when the issue is immaterial.'

The findings complained of in the motion were not immaterial. They affected the legal significance of the verdict and have support in the evidence. See McDonald, Texas Civil Practice, §§ 17.30--17.32 . Accordingly, appellants' first point of error is overruled.

Appellants' second point of error complains that special issue No. 18 places a greater duty and burden on them than is required by law. The point reads as follows:

'Special issue No. 18, which inquires whether Angie Carr failed to give such a signal to stop as a person using ordinary care would have given, places a greater duty and burden on the appellant than is imposed upon her by law, in that such issue under this record clearly infers that the law requires a signal other than a signal light.'

Appellants did not file any requested issues to be submitted to the jury. The only assignment of error contained in appellants' motion for new trial which is germane to its second point is contained in paragraph IV of their motion for new trial, reading:

'The Court erred in overruling Plaintiffs' objection to Special Issue No. 18'.

Appellee asserts that such an assignment of error in appellants' motion for new trial is too general to warrant the consideration of the point by the appellate court. We agree. The point is a complaint as to the form of the issue as submitted to the jury. The assignment of error does not distinctly point out to the trial court the matter claimed to constitute error. The assignment of error in appellants' motion for new trial is too general to justify consideration of the point on appeal. It does not comply with Rules 320, 321, 322 and 374, T.R.C.P. The quoted paragraph in appellants' motion for new trial does not in itself specify any particular ground of error either of omission or commission. It is, therefore, insufficient to direct the attention of the trial court to any particular act or omission which appellants believe constituted error. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890--891 (1960); Dudley v. Whatley, 400 S.W.2d 773 (Tex.Civ.App., Houston, 1966, wr. ref. n.r.e.); J. Weingarten, Inc. v. Moore, 441 S.W.2d 223 (Tex.Civ.App., Houston, 1st, 1960) rev . in part on other grounds in 449 S.W.2d 452 (Tex.Sup.1970).

Furthermore, the statement of facts shows that after the close of the evidence counsel for appellants dictated certain objections to the submission of special issue 18, which were later reduced to writing and were filed among the papers in the case. The transcribed objections are shown in the transcript. The document appearing in the transcript containing the objections does not show either the signature of the trial judge or any endorsement of his ruling thereon as required by Rule 272, T.R.C.P. Nowhere in the statement of facts (which was signed by the trial judge) is it shown that the trial court ruled on any objections to special issue 18. Consequently, appellants' objections to the submission of the issue cannot be considered on appeal. Big Three Welding Equipment Company v. Roberts, 399 S.W.2d 912, 918 (Tex.Civ.App., Corpus Christi, 1966, wr. ref. n.r.e.); Texas General Indemnity Company v. Youngblood, 466 S.W.2d 329 (Tex.Civ.App., Ft. Worth, 1971, wr. ref. n.r.e.); Beacon National Insurance Company v. Young, 448 S.W.2d 812 (Tex.Civ.App., Dallas, 1969, wr. ref. n.r.e.); Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App., San Antonio, 1968, wr. ref. n.r.e.); Neuhoff Brothers Packers, Inc. v. McCauley, 399 S.W.2d 929 (Tex.Civ.App., Waco, 1966, wr. ref. n.r.e.); Melton v. State, 395 S.W.2d 426 (Tex.Civ.App., Tyler, 1965, wr. ref. n.r.e.). We, therefore, consider the charge as though no objections were made. Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App., Corpus Christi, 1964, wr. ref. n.r.e.); Gale v. Spriggs, 346 S.W.2d 620 (Tex.Civ.App., Waco, 1961, wr. ref. n.r.e.).

In Burch v. Southwest Title Company, 450 S.W.2d 752 (Tex.Civ.App., San Antonio, 1970, n.w.h.), in discussing Rules 324 and 374, T.R.C.P ., the court held:

'* * * Complaints as to the manner and form of submitting a special issue are properly preserved, not by motion for judgment non obstante veredicto but by objection to the charge of the court. * * *'

In the instant case, there are no valid objections to the court's charge. Thus, as no objection to the form of the issue was made by appellant in the trial court prior to its submission to the jury, an objection to its form cannot be raised for the first time on appeal. Allen v. American National Insurance Company, 380 S.W.2d 604, 608--609 (Tex.Sup.1964); Clagett v. Neugebauer, 376 S.W.2d 768 (Tex.Civ.App., Austin, 1964, n.w.h.); Towne Industrial Equipment Co. v. Marmosaic, Inc., 358 S.W.2d 755 (Tex.Civ.App., Dallas, 1962, n.w.h.). Here, appellants have no assignment of error asserting that there is no evidence to support the jury finding to special issue 18. The nearest to such an assignment is the contention of 'no evidence' set out in appellants' motion for judgment and to disregard jury findings, which, as duly noted, was never ruled on by the trial judge.

Rules 374, T.R.C.P., provides that a ground of error not distinctly set forth in the motion for new trial, in cases where such a motion is required, shall be considered as waived. By failing to set forth in their motion for new trial the particular ground relied upon as constituting error, appellants have waived the error, if any, presented by their second point. State of Cal. Dept. of Mental Hygiene v. Bank of Southwest Nat. Ass'n, 163 Tex. 314, 354 S.W.2d 576 (1962); Dallas Ry. & Terminal Co . v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Houston Belt & Terminal Ry. Co. v. J. Weingarten, Inc., 421 S.W.2d 431 (Tex.Civ.App ., Houston, 1st, 1967, wr. ref. n.r.e.). For the reasons stated, appellants' second point is overruled.

Appellants raise 'no evidence', 'against the great weight and preponderance of the evidence' and 'insufficient evidence' points by their third, fourth and fifth points. They do not distinguish factual...