Le Compte v. Sanders, 14286

• Decision Date: 30 April 1964
• Docket Number: No. 14286,14286
• Citation: 378 S.W.2d 861
• Parties: William J. LE COMPTE, Appellant, v. Virgil H. SANDERS et al., Appellees.
• Court: Texas Court of Appeals

Page 861

378 S.W.2d 861

William J. LE COMPTE, Appellant, v. Virgil H. SANDERS et al., Appellees.

No. 14286.

Court of Civil Appeals of Texas, Houston.

April 30, 1964.

Rehearing Denied May 28, 1964.

Leland B. Kee, Angleton, and James K. Nance, Houston, and Davis, Kee, Mason & Lee, Angleton, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.

Horace F. Brown and Gay C. Brinson, Jr., Houston, Law Offices of Horace F. Brown, Houston, Bob Owen, Alvin, and Talbert, Giessel, Cutherell & Barnett, Houston, of counsel, for appellees.

WERLEIN, Justice.

This suit was brought by plaintiff, William J. Le Compte, to recover damages arising out of the death of his wife, Annette L. Le Compte, which occurred as a result of a collision at about 2 p. m. on November 6, 1959, between a Ford driven by Mrs. Le Compte and a Buick driven by defendant Sanders, and in which defendant Woods was riding as a passenger. Defendant Sanders, who will be referred to as cross-plaintiff herein, and Woods, who will also be referred to as cross-plaintiff, had each filed a suit against Le Compte. Since plaintiff's suit was prior in time, the suits of cross-plaintiffs were abated and they then filed cross-actions in the present suit. Based upon the jury verdict, which found all issues in favor of appellees, judgment was entered that plaintiff Le Compte take nothing from the defendants, and that said defendants and cross-plaintiff, Sanders and Woods, recover respectively $4,634.00 and $100,000.00 from cross-defendant Le Compte individually and as community survivor and independent executor of the estate of Annette Le Compte. From such judgment plaintiff and cross-defendant Le Compte has duty perfected his appeal.

There were only two living witnesses to the actual collision, namely Sanders and Woods, although one Robert Lozano had observed the Le Compte Ford and the Sanders Buick a few seconds before the impact. The testimony of appellees was to the effect that while Sanders was driving his 1950 Buick in a westerly direction toward Angleton along Farm Road 210, on his right side of the road, a 1956 Ford driven by Mrs. Le Compte in the opposite direction suddenly came over into their lane of traffic in such manner that the Buick struck the righthand side of the Ford. Both appellees testified that they were in their proper lane of traffic at the time of the collision.

Robert Lozano, a witness who had been driving a truck some distance ahead of the Buick driven by appellee Sanders, testified that as the Le Compte Ford approached him the lady driving it looked like she was reaching for something. He further testified that as the car passed him he looked in his rear-view mirror and it looked like the Ford was getting off the road, and then a second leter he heard the crash. It is undisputed that the Ford skidded approximately 58 feet before being struck by the Buick, and the evidence indicates that the point of impact between the two vehicles occurred in the north, or westbound, lane of the highway, being the lane traveled by appellees Sanders and Woods. The only evidence that the Buick was not in its proper lane on the correct side of the highway at the time of and before the collision was given by plaintiff's expert witness, Ralph Snyder, who undertook to reconstruct the accident.

Appellant's first three Points, which are briefed together, complain of error on the part of the trial court in admitting into evidence, over timely objection, the opinion testimony of E. B. Hallmark, Jr., and Alvin Doyle, Jr., appellees' expert witnesses, who undertook to reconstruct the accident, to the effect that immediately before the collision the brakes of the Buick were applied and the Buick's right front wheel made a skid mark on its right edge of the pavement and in a parallel line to the highway, and also erred in admitting into evidence cross-plaintiffs' Exhibit B, a sketch prepared by the witness Alvin Doyle, Jr., which showed the Le Compte Ford at an 82~ angle and Sanders' Buick entirely on its right side of the highway at the edge of the pavement and in a parallel position to the highway at the time of the collision, since the testimony of such witnesses took into consideration an erroneous assumption that the right front wheel of the Sanders Buick had made a brake tire mark at the north edge of, and in a parallel line to, the highway immediately before the collision; and because the undisputed factual testimony was that Sanders did not apply the brakes of his Buick on the occasion in question. Appellant also complains of the error of the court in failing to grant plaintiff's motion to disregard and set aside the jury's answer to Special Issue No. 17 to the effect that defendant Sanders did not fail to apply the brakes on his Buick, for the reason that the undisputed testimony shows that the brakes on the Buick were not applied immediately prior to the collision. The court's error in such respects was callulated, appellant says, to influence the jury in their answering the ultimate issue of whether Sanders drove his Buick on his right side of the highway.

Appellant contends that the undisputed testimony shows that the brakes of the Buick were not applied immediately prior to the collision, and that cross-plaintiffs, through their counsel, introduced into evidence plaintiff's Exhibit A, and in the admitted portions of such exhibit, cross-plaintiff Sanders stated unequivocally that he did not in fact apply the brakes on the Buick immediately before the collision.

It is appellant's position that Sanders drove his Buick or some portion thereof on the wrong side of the road, and that Mrs. Le Compte, confronted with Sanders' Buick on her side of the road, found herself in a position of imminent and apparent danger which threatened her life; and being so confronted she attempted to avoid the collision by applying her brakes and turning the Ford to her left side of the road, but at about the same time she took such action, Sanders' Buick attempted to return from its wrong side to its right side of the road and the two automobiles came into collision. Appellant contends that at the moment of the collision Sanders' Buick was at an angle to the highway and its rear was still occupying the wrong side of the road, which was a hard-topped road without a marked center stripe and only 18 feet 6 inches in width.

Appellant asserts that the crucial issue in this case was whether Sanders drove some portion of his Buick on his left side of the highway and was angling back toward his right side immediately before the collision, or whether at such time Sanders' Buick was on its right side of the highway and parallel to the edge of the pavement. The witnesses Hallmark and Doyle testified over appellant's objections that in their opinion the brakes on Sanders' Buick were applied and made a brake tire mark or skid mark on his right edge of the pavement and in a parallel line to the highway. Such testimony supports Sanders' and Woods' testimony that the Buick was on its righthand side of the highway.

The evidence shows that Woods did not know whether or not Sanders applied his brakes. He testified: 'I wouldn't think he would have time.' At another time he answered: 'I don't know.' It is uncontroverted that Woods didn't know whether or not Sanders applied his brakes.

It is appellant's contention that his Exhibit A constitutes a judicial admission on the part of cross-plaintiff Sanders to the effect that he did not apply his brakes, and that hence it was error on the part of the trial court to permit cross-plaintiffs' experts, Hallmark and Doyle, to in effect controvert such judicial admission by testifying to the skid mark which they claimed the right front wheel of the Buick made on the right edge of the pavement parallel to the highway, and also erred in admitting cross-plaintiffs' Exhibit B, a sketch prepared by the expert witness, Alvin Doyle, Jr.

In order to determine whether or not Exhibit A does or does not constitute a judicial admission on the part of appellee Sanders, which he may not controvert himself or by his witnesses, it is necessary to examine not only the contents of such exhibit but the testimony given at the trial by Sanders, and the facts and circumstances leading up to the admission in evidence of Exhibit A and the stipulation made by counsel representing Sanders at the trial.

Prior to the admission of Exhibit A Sanders had testified in person at the trial at length with respect to whether there had been an application of the brakes of his Buick. When asked whether he had attempted to apply his brakes before the collision, he testified: 'Yes, I tried to, I don't know whether they got on, or not, I did try to apply the brakes, yes, sir.' He also testified: 'They may have held, I just don't know.' He further testified: 'I don't know, I didn't say I did, I just said I tried to, I don't know if I got them on or not.' Sanders was being examined as an adverse witness by appellant's counsel. After the above testimony, he was asked with respect to the former trial of the case, and testified: 'I just got through telling you whether I got them on or not, just a few minutes ago.'

'Q Well, the question Mr. Sanders is 'Then you may have tried to apply your brakes and did not get your brakes in application before the collision, is that right' and your answer was 'That's right.', is that a correct statement?

'A Sure.'

The testimony up to this point clearly shows that Sanders did not know whether or not he applied his brakes. He was under the impression that he tried to apply them but did not know whether or not he got the brakes in application before the collision.

Prior to the introduction in evidence of appellant's (Plaintiff's) Exhibit A, appellant's attorney had interrogated Sanders with respect to statements made in such Exhibit, and had gotten before the jury a number of statements contained therein, including the following...