Cleaver v. Dresser Industries, 1156

• Decision Date: 17 August 1978
• Docket Number: No. 1156,1156
• Citation: 570 S.W.2d 479
• Parties: A. T. CLEAVER, Appellant, v. DRESSER INDUSTRIES et al., Appellees.
• Court: Texas Court of Appeals

Page 479

570 S.W.2d 479

A. T. CLEAVER, Appellant, v. DRESSER INDUSTRIES et al., Appellees.

No. 1156.

Court of Civil Appeals of Texas, Tyler.

Aug. 17, 1978.

Rehearing Denied Sept. 9, 1978.

Robert M. Minton, Waldrop, Shaw & Minton, Henderson, for appellant.

Melvin R. Wilcox, III, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for appellees.

DUNAGAN, Chief Justice.

This case arose out of a collision between a tractor-trailer, owned by Dresser Industries, Inc. and driven by James Matthews, appellees, and a farm tractor owned and driven by A. T. Cleaver, appellant.

The collision occurred at the intersection of U. S. Hwy. 79 and Texas Farm Road 839 about 4:15 p. m. on October 4, 1973. The weather was dry and clear, with traffic conditions described as light. Both parties were proceeding southwest on Hwy. 79 in their respective vehicles, appellant operating the lead vehicle followed by appellee in the tractor-trailer. At the time of the accident the speed limit along Hwy. 79, a two-lane blacktopped road, was 60 m. p. h. for trucks and 70 m. p. h. for cars. It is undisputed that immediately prior to the collision appellant was traveling at a rate of 17-18 m. p. h. and appellee at 62 m. p. h. As appellant attempted to turn left onto Farm Road 839, the collision with appellees' tractor-trailer occurred in the northeast bound lane of Hwy. 79. The impact left appellant's farm tractor in the middle of the road, while appellees' tractor-trailer came to rest in a ditch. Both drivers suffered only minor injuries but the two vehicles were extensively damaged. Appellees, plaintiffs below, instituted this action to recover for property damage and personal injuries, respectively, sustained in the accident. Appellant answered and counter-claimed for his own damages.

James Matthews, appellee, testified that he first spotted appellant while he was three-fourths to one mile away. Appellant was driving along the far right portion of the highway, with his left wheels on the paved shoulder and right wheels in the dirt on the edge of the shoulder. Appellee saw the tractor's blinking light which he felt signified a slow-moving vehicle. As appellee approached within 50 to 75 feet of the tractor, appellant suddenly turned to the left and cut across appellee's path. Mr. Matthews testified that he swerved into the northeast bound lane to avoid appellant, but that the right, front wheel of the tractor-trailer struck the left front wheel of appellant's farm tractor. Appellee stated that he had no time to apply his brakes.

Officer McGee, a highway patrolman for the Department of Public Safety, investigated the accident. Based upon his observations of the scene, including the tire tracks of appellant's farm tractor on the side of the road, he concluded that appellant had made his left turn from the right portion of the road. As a result, he testified that he issued a citation to appellant for an improper left turn.

The testimony of A. T. Cleaver, appellant, conflicts with that of James Matthews and Officer McGee as to the manner in which he attempted to make his left turn. According to appellant, he drove along the center line of the highway for over 500 feet prior to attempting his left turn at the intersection. His left turn signal was on during this entire period. Appellant was pulling a "bush hog" or shreader behind his tractor. He testified that as he turned left, the tractor-trailer first struck the "bush hog," then the tractor's left, rear tire and finally the tractor's left, front tire.

Frank Postell, service and parts manager for Lowe Tractor and Equipment, was called as a witness by appellant to testify about damages to his tractor. In spite of the fact that appellant contended that the "bush hog" was struck first by a tractor-trailer traveling 62 m. p. h., the only damages to the "bush hog" recalled by Mr. Postell were missing hubcaps. Mr. Cleaver added that the impact knocked some paint off the "bush hog." However, the front wheel of the tractor was torn off. The only eyewitness to the collision, other than the parties themselves, was Raymond Fears. Mr. Fears was stopped at the intersection in question on Farm Road 839 but admitted he did not see the vehicles prior to the collision. He did testify by deposition, however, that the front wheels of appellant's tractor were nearly square across the road, rather than angled, as appellant crossed the highway. He added that the left front wheel may have been "a little bit ahead."

The case was tried to a jury and based on their findings a judgment was entered in favor of appellees for a total of $13,445.43. For purposes of this appeal, the significant findings of the jury in response to the special issues submitted were that (1) appellant failed to keep a proper lookout (Special Issue No. 1), (2) appellant turned to the left when it could not be done safely (Special Issue No. 2), (3) such acts constituted negligence and were a proximate cause of the occurrence in question (Special Issue No. 3), (4) appellant failed to make his approach for a left turn in the extreme left hand portion of his travel lane (Special Issue No. 4), (5) such was a proximate cause of the collision in question (Special Issue No. 5), and (6) the percentage of negligence, which caused the collision, attributable to each of the parties was 25% To James Matthews and 75% To A. T. Cleaver (Special Issue No. 10). Appeal therefrom has been timely perfected to this court by the defendant below, A. T. Cleaver.

Appellant predicates his appeal upon seven points of error. However, points of error Nos. 5, 6 and 7 are accompanied by neither a statement of facts pertinent to such points nor is there any supporting argument and authority. The points of error thus presented are not preserved and are therefore waived; where, as here, no fundamental error appears. Slayton v. White, 487 S.W.2d 204, 205 (Tex.Civ.App. Tyler 1972, ref'd n. r. e.). Any question not briefed as required by Rule 418, T.R.C.P., is waived. Lott v. Lott, 370 S.W.2d 463, 465 (Tex.Sup.1963); Dreeben v. Sidor, 254 S.W.2d 908, 912 (Tex.Civ.App. Amarillo 1952, ref'd n. r. e.); Keahey v. Jones, 291 S.W.2d 767, 770 (Tex.Civ.App. Amarillo 1956, n. w. h.); City of Houston v. Socony Mobil Oil Company, 421 S.W.2d 427, 430 (Tex.Civ.App. Houston (1st Dist.) 1967, ref'd n. r. e.). Therefore points of error Nos. 5, 6 and 7 will not be considered.

Appellant's remaining points of error are:

FIRST POINT: The verdict and findings of the jury on Special Issues Nos. 1, 2, 3, 4, 5 and 10 . . . are unsupported by the evidence, there being no evidence of probative force to support such findings, and the Court erred in rendering judgment based upon such findings . . . .

SECOND POINT: There is no evidence to support the findings of the jury to Special Issues Nos. 1, 2 and 4, and the Court erred in rendering judgment based upon such findings.

THIRD POINT: The overwhelming weight and preponderance of the evidence, in this case, is so against the verdict that such verdict is clearly wrong, or so as to make such verdict manifestly unjust and unfair, and shocking to the conscience . . .

FOURTH POINT: The undisputed facts in this case as to speed, and aspects of the physical environment of the scene of the accident . . ., present themselves in such a manner as to be at such a variance with the findings of the jury to Special Issues Nos. 1, 2, 3, 4 and 5 as to render that part of the testimony upon which the jury based its findings that such acts occurred the same as no evidence, and negates the findings of the jury to such issues.

"A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review." Hutcherson v. Hinson, 557 S.W.2d 814, 815 (Tex.Civ.App. Tyler 1977, n. w. h.). See also Brungs v. Consolidated Plan Service, Inc., 529 S.W.2d 79, 81 (Tex.Civ.App. San Antonio 1975, ref'd n. r. e.); Blackmon & Associates, Inc. v. Palmer Building Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex.Civ.App. Corpus Christi 1971, ref'd n. r. e.); Lofland v. Jackson, 237 S.W.2d 785, 786 (Tex.Civ.App. Amarillo 1950, ref'd n. r. e.). Clearly the points of error relied upon by appellant are overly broad, general, and attempt to raise questions of both legal and factual sufficiency.

However, this court will employ a liberal interpretation of the rules in favor of the sufficiency of appellant's brief based on the prior policy of appellate courts and Rule 422, T.R.C.P. Where the substance of the complaint can be determined from the statements and arguments under the point, this court has discretion to consider a faulty point of error. Airway Insurance Company v. Hank's Flite Center, Inc., 534 S.W.2d 878, 879-880 (Tex.Sup.1976); Brungs v. Consolidated Plan Service, Inc., supra; Russell v. Truitt, 554 S.W.2d 948, 955 (Tex.Civ.App. Fort Worth 1977, n. w. h.); Hutcherson v. Hinson, supra; McClure v. City of Texarkana, 435 S.W.2d 599, 602 (Tex.Civ.App. Texarkana 1968, dism'd; Walker v. Bedell, 320 S.W.2d 913, 915 (Tex.Civ.App. Texarkana 1958, n. w. h.); Lofland v. Jackson, supra; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943). Where both "no evidence" and "insufficient evidence" points of error are raised in a brief before a Court of Civil Appeals, it is the duty of the court to consider and decide the "no evidence" point first. Calvert, "No Evidence" and " Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361, 369 (1960).

Appellees contend that appellant failed to preserve any error of the trial court relating to legal sufficiency because such alleged error was not asserted prior to rendition of judgment. Appellant laid no prejudgment predicate by filing a motion for instructed verdict, objection to submission to the jury of a vital fact issue, motion for judgment notwithstanding the...