Daniels v. Southwestern Transp.

• Citation: 621 S.W.2d 188
• Decision Date: 21 July 1981
• Docket Number: No. 8909,8909
• Parties: Orris DANIELS, Individually and as Administrator of the Estate of Shirley Daniels, Deceased, Appellant, v. SOUTHWESTERN TRANSPORTATION, et al., Appellees.
• Court: Texas Court of Appeals

Page 188

621 S.W.2d 188

Orris DANIELS, Individually and as Administrator of the Estate of Shirley Daniels, Deceased, Appellant, v. SOUTHWESTERN TRANSPORTATION, et al., Appellees.

No. 8909.

Court of Civil Appeals of Texas, Texarkana.

July 21, 1981.

Rehearing Denied Aug. 18, 1981.

Harry B. Friedman, Harkness, Friedman, Kusin & Britt, Texarkana, for appellant.

Norman C. Russell, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellees.

CORNELIUS, Chief Justice.

Orris Daniels filed this action against Southwestern Transportation and Curtis L. Morgan to recover damages for personal injuries and the wrongful death of his wife, Shirley Daniels, allegedly resulting from a motor vehicle accident in Bowie County on July 19, 1978.

The case was tried to an eleven member jury. The trial court ruled as a matter of law that the wrongful death action was without merit, and instructed a verdict that Mrs. Daniels' death was not proximately caused by the accident. On the remaining personal injury claim the jury found that Curtis Morgan, who was the driver of the truck which struck Mrs. Daniels' car, was not negligent in failing to keep a proper lookout, or as to the type mirrors he had on the truck or the condition of its power steering. The jury also found that Mrs. Daniels was not injured as a result of the collision. In accordance with these findings, the trial court entered a take nothing judgment against Mr. Daniels.

Mr. Morgan was the only witness to testify regarding the circumstances of the accident, which occurred at Building 595 on the grounds of Red River Army Depot. Morgan was employed by Southwestern Transportation and was operating a tandem axle tractor owned by his employer. The tractor was equipped with standard rectangular mirrors on each side of the cab and with a round convex mirror on the right side. On the day of the accident Morgan delivered a load of ammunition to the ammunition area of the arsenal, dropped off his trailer and then drove the tractor some eight miles to Building 595 where he planned to eat lunch. He testified that the power steering seal had broken after he dropped off his trailer, causing some stiffness in steering. He traveled down a two-lane street which was devoid of other traffic as he approached Building 595. Adjacent to the building is a parking area where tractors and trailers are allowed to park. As he approached the building he turned to his right and came to a stop in order to shift into reverse before backing into the parking area. After stopping his tractor and before beginning to back up, Morgan checked his mirrors and looked out his side and rear view mirrors to check for traffic and saw none. He then began to back up his tractor. After traveling approximately 16 feet, the length of his tractor, the impact with Mrs. Daniels' automobile occurred. The first time Morgan saw Mrs. Daniels' car was after the impact. He said that he did not hear anything to indicate that another vehicle was in the area, and that if a horn had sounded he would have heard it. He testified that the only damage to Mrs. Daniels' car was a scuff mark on the front edge of the left front fender. Defendants' exhibits 1 through 3 consist of five photographs of the damaged car. They show no dents or scratches on the car, the only apparent mark being a grayish scuff mark on the leading edge of the left front fender. No light was broken. Mr. Daniels testified that before these photographs were taken he used a hammer and a two-by-four to knock the dents out of the car.

Some of Mr. Daniels' witnesses testified that although Mrs. Daniels suffered no observable injury in the collision, she had always been a calm, healthy person before the accident, but she became very nervous and her physical condition deteriorated rapidly after the collision. She was hospitalized several times prior to her death on August 25, 1978.

Southwestern produced the testimony of two medical doctors. Dr. Brown said that Mrs. Daniels' death was caused by intravascular coagulopathy, a condition where the clotting mechanism of the blood becomes defective, resulting in internal bleeding. This condition caused hemorrhaging into Mrs. Daniels' spine and brain. The testimony was that a pelvic infection known as pelvic inflammatory disease, for which Mrs. Daniels was hospitalized on August 16, 1978, caused the intravascular coagulopathy which resulted in her death. Dr. Brown testified that trauma can cause intravascular coagulopathy, but he did not feel that trauma caused the condition in Mrs. Daniels' case. The only medical testimony was that Mrs. Daniels' death was totally unrelated to the accident involved in this suit.

Mr. Daniels' first points complain that the judgment must be reversed because he was not allowed to have twelve jurors consider his case.

On August 25, 1980, a jury of twelve persons was selected, impaneled and sworn. The presentation of evidence began on August 26th. On the evening of the 25th one juror informed the judge that he had become disabled with a heart ailment and was scheduled to see a physician on the morning of the 26th. Over the objection of Mr. Daniels, the juror was excused and the trial proceeded with eleven...