Continental Bus System v. Biggers
| Decision Date | 17 March 1955 |
| Docket Number | 12840,Nos. 12814,s. 12814 |
| Citation | 277 S.W.2d 228 |
| Parties | CONTINENTAL BUS SYSTEM, Inc., et al., Appellants, v. Mrs Patricia BIGGERS, a Widow, et al., Appellees. Mrs. Betty Jo Epps GROSS et vir, Appellants, v. Mrs Patricia BIGGERS, a Widow, et al., Appellees. |
| Court | Texas Court of Appeals |
Chilton Bryan, Houston, Strasburger, Price, Kelton, Miller & Martin, Dallas, for Continental Bus System, Inc.
Hall E. Timanus, Robert L. Bradley, Houston, Andrews, Kurth Campbell & Bradley, Houston, of counsel, for Betty Jo Epps Gross and husband, William Gross, Jr.
Butler, Binion, Rice & Cook, Wm. N. Blanton, Jr., Houston, for Commercial Standard Ins. Co.
Pepper & Markward, Forrest Markward and Robert C. Pepper, Fort Worth, for Mrs. Patricia Biggers, a widow, and the minors John Robert Biggers, Michael Van Biggers and Stephen Howard Biggers.
Hamblen & Bobbitt, Karl E. Kraft, Houston, for A. H. Lightfoot, P. E. Furlow, K. K. Kellam and Basil S. Roper, d/b/a Texas Motors.
This litigation arose out of a collision involving two automobiles and a passenger bus which occurred on December 20, 1951. The following statement of the general manner in which the collisions occurred is deemed necessary to an adequate presentation of the contentions of the respective litigants. The diffeences as to time and distance intervals and speeds of the respective vehicles as raised by the evidence, and the legal effect thereof, will be treated later.
The collisions occurred on Highway 75 about 10 miles north of Huntsville. While the precise point of the impacts is somewhat disputed, they appear under all of the evidence to have occurred at a point within a few hundred feet north of a bridge across Nelson Creek. At such point Highway 75 is 24 feet in width and Nelson Creek bridge is 28 feet in width and 200 feet in length. Prior to the collisions the bus, owned by appellant, Continental Bus System, Inc., was proceeding north en route from Houston to Dallas. At the time when the bus was approaching Nelson Creek Bridge from the south, three automobiles, all proceeding south on Highway 75, were approaching the bridge from the north. The first of such automobiles was a Hudson driven by A. D. Phelps, who is not a party litigant. Behind the Hudson was a Ford automobile which, for the purpose of our discussion, may be treated as being driven by E. A. Biggers, Jr., the deceased husband of appellee, Patricia Biggers, and father of her minor children who are also appellees. This Ford was occupied by two men in addition to the driver and was proceeding at a speed greater than that of the Hudson ahead of it. Behind the Ford and traveling at about the same speed was a Chevrolet automobile owned and driven by appellant, Betty Jo Epps Gross, and occupied also by a passenger, Mrs. Ernest de Jernett. The appellant's bus reached the bridge and was proceeding across it as the first of the three automobiles approached the bridge from the north. At that time the Hudson reduced its speed. The Ford, which in the meantime had reduced the distance between it and the Hudson, reduced its speed presumably to conform to that of the Hudson. The Cheverolet, following closely behind the Ford, collided with the rear of the Ford automobile. According to the undisputed testimony of the driver of the Chevrolet, she applied the brakes of her car in order to reduce its speed and maintain her distance from the Ford, but for some reason the brakes failed to function. There is evidence that as the Chevrolet approached and collided with the Ford its front wheels were turned to the right. Immediately after such impact, the Ford turned to its left at about a forty-five degree angle out of its own southbound lane of the highway onto the northbound lane thereof and directly into the path of the approaching bus. From the answers responsive to special issues submitted, it is apparent that the jury concluded that such movement of the Ford was the result of the impact of the Chevrolet automobile. Such findings appear amply supported by the evidence and are not here attacked. The bus which had maintained its speed and its northbound course in its proper lane of the highway collided with the Ford automobile in the northbound lane of the highway. From the point of this impact, the bus proceeded north and to its right off of the highway, carrying the Ford ahead of and under it, and came to rest in a drainage ditch some one hundred and forty-five feet from the point of impact. The driver and the other two occupants of the Ford were instantaneously killed.
Suit was instituted by Mrs. Patricia Biggers, individually and as next friend of the minor appellees, and by Enoch A. Biggers, Sr., and wife, Bea, against Continental Bus System, Inc. and against Mrs. Betty Jo Epps Gross and her husband, William Gross, Jr., to recover damages for the alleged wrongful death of E. A. Biggers, Jr., husband of Patricia Biggers, father of the minor appellees and son of E. A. Biggers, Sr., and wife, Bea. Continental Bus System, Inc. answered and filed a cross-action against Betty Jo Epps Gross and husband to recover damages alleged to have been sustained by its bus. Continental Bus System also filed a thirdparty action against Texas Motors, a partnership composed of A. H. Lightfoot, P. E. Furlow, K. K. Kellam and Basil S. Roper, who were the employers of E. A. Biggers, Jr., deceased, seeking by such third-party action to recover for the damages alleged to have been sustained to its bus. Betty Jo Epps Gross answered the original suit and filed a cross-action against Continental Bus System, Inc., seeking recovery over against that company for any judgment which might be rendered against her and alternatively seeking contribution from such company. Jack Lanham, the driver of the bus, as third party plaintiff, sought judgment against Betty Jo Epps Gross and the above named partners composing Texas Motors, for personal injuries and other damages alleged to have been sustained by him. American Motorists Insurance Company intervened, seeking recovery from Betty Jo Epps Gross and the individuals composing the partnership of Texas Motors of moneys paid by it to Jack Lanham under the terms of a policy of compensation insurance. Commercial Standard Insurance Company intervened in the original suit filed by Mrs. Patricia Biggers, et al., seeking recovery of moneys paid by it to them under the terms of a compensation insurance policy carried for the benefit of the deceased, E. A. Biggers, Jr.
Extended trial of the issues joined by the pleadings of the respective litigants was had in the District Court of Harris County before a jury. At the conclusion of the evidence the cause was submitted to the jury upon 79 special issues. After receipt of a verdict responsive to the issues submitted, the trial court entered its judgment disposing of the issues pleaded substantially as follows:
(1) in favor of appellee, Patricia Biggers, individually and as next friend of the minor appellees and intervenor Commercial Standard Insurance Company and against Continental Bus System, Inc., and Betty Jo Epps Gross and husband, jointly and severally, in the sum of $101,080. The identify of interests of the various plaintiffs and the named intervenor make it unnecessary on this appeal to set out the apportionment of such money between them;
(2) denying recovery to plaintiffs, Enoch A. Biggers and wife, Bea, they having theretofore disclaimed;
(3) denying recovery to Continental Bus System, Inc., Jack Lanham, and American Motorists Insurance Company upon their respective cross-action, third-party plaintiff action and intervention, against Betty Jo Epps Gross and the individuals composing the partnership, Texas Motors;
(4) denying recovery to Continental Bus System, Inc., in its claim for indemnity against Betty Jo Epps Gross;
(5) denying recovery to Betty Jo Epps Gross in her claim for indemnity and/or contribution from Continental Bus System, Ins.
From the judgment so rendered Continental Bus System, Inc., and Mrs. Betty Jo Epps Gross and husband, William Gross, Jr., have duly perfected their appeal to this Court. However Continental Bus System, Inc., alone filed a transcript in this Court and such transcript does not contain a copy of the motion for new trial filed by the appellants Gross, or of the trial court's order overruling the same. The transcript does not show that these appellants requested a copy of such instruments to be included in Continental's transcript, but said transcript does include a copy of a letter from attorneys for Mrs. Gross, dated October 6, 1954 in which they stated that 'Since the defendant, Continental Bus System, Inc., * * * has requested a transcript, we are not requesting any transcript * * *.' With this letter the attorneys forwarded Mrs. Gross' appeal bond to the District Clerk for filing.
After Continental's transcript had been duly filed in this Court and after said appellant had filed its brief, appellees, Patricia Biggers et al., filed their motion to affirm the judgment of the trial court on certificate as to the appellants, Betty Jo Epps Gross and husband, William Gross, Jr., and accompanied such motion with a certificate of the Clerk of the court below showing how and when such appellants duly perfected their appeal. The motion to affirm on certificate was ordered taken with the case on its merits. Such motion is numbered 12,840 on the docket of this Court.
Appellants, Betty Jo Epps Gross and husband, have not answered the motion to affirm on certificate but have filed in the main appeal (12,814) their suggestion under Rule 428, T.R.C.P., that they be permitted to file a supplemental transcript containing a copy of their motion for new trial and of the court's order overruling the same. Such supplemental trnascript accompanies their suggestion. The transcript filed herein by appellant, Contential Bus System, Inc.,...
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Biggers v. Continental Bus System, Inc.
...(assuming that he was negligent) were not a proximate cause of the collision. The judgment of the trial court was otherwise affirmed. 277 S.W.2d 228. A more detailed statement of facts will be found in the Court of Civil Appeals' All parties agree that plaintiff must recover, if at all, und......
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Biggers v. Continental Bus System, Inc.
...of the negligent acts of the bus driver was a proximate cause of the collision. The judgment of the trial court was otherwise affirmed. 277 S.W.2d 228. A more detailed statement of facts will be found in the opinion of the Court of Civil The judgment of the Court of Civil Appeals in favor o......