Erwin v. Welborn
| Decision Date | 27 October 1947 |
| Docket Number | No. 5815.,5815. |
| Citation | 207 S.W.2d 124 |
| Parties | ERWIN et al. v. WELBORN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Action by George Simms, as next friend for Rosa Welborn, widow, and her four children, Dolores Welborn, Leroy Welborn, Don Allen Welborn, and Jimmie Welborn, against C. B. Erwin and another, arising out of an automobile collision. From judgment for plaintiffs, the defendants appeal.
Affirmed.
H. H. Cooper and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellants.
Allen, Locke & Kouri, of Wichita Falls, for appellees.
This case grew out of an automobile collision at a road intersection on Highway No. 287 in Potter County, Texas, about eight miles east of Amarillo. As a result of injuries received in this collision, Roy Welborn died; and his four children, Dolores Welborn, age 14, Leroy Welborn, 10, Don Allen Welborn, 8, and Jimmie Welborn, 6, suffered personal injuries. George Simms as next friend for Rosa Welborn, a widow, and for the four children, death beneficiaries of Roy Welborn, appellees, brought this action against C. B. Erwin and Harold Lee Erwin, father and son, appellants. Rosa Welborn, widow of Roy Welborn and mother of the four children, was not involved in the collision. At the time of the accident she was a patient at the Wichita Falls State Hospital.
On June 18, 1946, about 9 a.m., so the evidence reveals, the Welborn car, driven by Roy Welborn's brother, Paul, was proceeding east on Highway No. 287. The Erwin wheat truck, operated by Harold Lee Erwin, a boy about 17 years old, was proceeding south on a crossroad. The Welborn children and their father were in the Welborn car. These children had been living at the Presbyterian Home For Children at Amarillo since 1942, soon after their mother had become a patient at the hospital. On the night preceding the accident the Welborn brothers had driven from Wichita Falls to Amarillo to get the children and to return with them to Wichita Falls for a vacation during which they were to have the opportunity of visiting their mother at the hospital.
The appellees alleged that the appellant Harold Lee Erwin, an employee of appellant C. B. Erwin, at the time of the accident was grossly negligent in operating his father's truck in that he was driving in excess of the lawful rate of speed; that he did not have the truck under proper control at the time and immediately prior to the collision; that he was not keeping a proper lookout; and that he failed to bring the truck to a complete stop at a stop sign in violation of the laws of the State of Texas. Further, the appellees pleaded that C. B. Erwin was negligent in not providing a suitable, competent, and prudent person to drive his truck upon a public highway. The appellees pleaded that any one or all of the alleged acts of negligence were the direct and proximate cause of the collision.
The appellants filed a general denial and pleaded contributory negligence on the part of Paul Welborn, the operator of the Welborn car. The appellants alleged that neither Paul Welborn nor Roy Welborn was keeping a proper lookout; that both were tired and exhausted from their drive of the night before; that they were under the influence of intoxicating liquor; and that these acts on the part of the Welborn brothers constituted negligence and were the sole proximate cause of the injuries sustained by the appellees.
Trial was to a jury. To the special issues submitted, the jury determined, among others, the following facts: that Harold Lee Erwin did not fail to stop at the road intersection stop sign; that he did fail, however, to keep such a lookout for vehicles approaching the road crossing from the west as would have been kept by a person of ordinary prudence under similar circumstances; and that such failure was the proximate cause of the injuries sustained by Roy Welborn and his children.
The jury found no acts of negligence on the part of the Welborn brothers. In answer to appellants' special requested issues, the jury found that the Welborn brothers at the time of the collision were not under the influence of intoxicating liquor.
In answering the special issues as to the amount of money which would compensate each of the Welborn children for the personal injuries sustained in the collision, the jury found as follows:
Dolores $ 4,320.00
Leroy $ 7,200.00
Don Allen $ 9,360.00
Jimmie $10,800.00
As to the amounts of money which would reasonably compensate Rosa Welborn and each of her children for the pecuniary loss sustained by them by reason of Roy Welborn's death, the jury found:
Rosa Welborn, the mother $2,400.00
Dolores $1,080.00
Leroy $1,800.00
Don Allen $2,340.00
Jimmie $2,700.00
In accordance with the jury's verdict the trial court rendered judgment against the appellants and in favor of the appellees. It found that Harold Lee Erwin was an employee of the appellant C. B. Erwin and that at the time of the accident Harold Lee Erwin was acting within the scope of his employment. The court awarded the appellees $42,000 to be divided in accordance with the jury's findings. To this judgment the appellants duly excepted and have perfected their appeal to this court. Following the rendering of judgment, the appellees filed a remittitur of $3,300 for Leroy Welborn and $5,200 for Don Allen Welborn.
In nine points of error the appellants challenge the court's judgment, first contending the court erred in sustaining appellees' motion to strike appellants' first amended motion for a new trial. The record reveals that the judgment was rendered in this case on March 10, 1947; that the appellants filed their motion for a new trial on March 17, 1947; and that their first amended original motion for a new trial was filed on April 8, 1947. Rule 330(k), Texas Rules of Civil Procedure, requires that an amended motion for a new trial be filed within 20 days of the original motion. This rule is mandatory. Since appellants' amended motion was filed more than 20 days after the original motion, the amended motion is ineffective or any purpose. Traders & General Ins. Co. v. Scott et al., Tex.Civ.App., 189 S.W.2d 633, writ refused w. m.; Millers Mut. Fire Ins. Co. of Texas v. Wilkirson et al., 124 Tex. 312, 77 S.W.2d 1035; Dallas Storage & Warehouse Co. et al. v. Taylor, District Judge, et al., 124 Tex. 315, 77 S.W.2d 1031; Tunstill et al. v. Scott, Tex.Civ.App., 182 S.W.2d 734, writ refused w. m.
The appellants' second point of error concerns the court's ruling as to the admission of two whiskey bottles in evidence. Soon after this collision occurred, Highway Patrolman Jack Miller arrived on the scene and, while making an investigation of the causes of the accident, removed a partially filled pint bottle of whiskey from the person of Paul Welborn. In his search of the Welborn car, he found an unopened pint bottle of whiskey in the rear seat. Miller testified he detected an odor of whiskey on Roy Welborn's breath. There was other evidence as to the odor of whiskey, although there seemed to be some difference of opinion as to whether the odor was carried on Roy Welborn's breath or Paul Welborn's breath or whether it was emanating from their whiskey-saturated clothing. In any event Miller had possession of the two bottles of whiskey. Upon the request of appellants' counsel for Miller to produce the two bottles, appellees' counsel objected on the grounds that to bring these bottles of whiskey into court was inflammatory and prejudicial to the rights of the appellees. The trial court sustained the objection. The appellants here contend the court erred when it refused to permit the appellants to produce the bottles in open court or to introduce them in evidence. With this we do not agree. Without objection the appellants had introduced before the jury evidence to present properly this portion of their defense and theory of the case. A witness for the appellants, the operator of an Amarillo liquor store, testified that early on the morning of the day of the accident he had sold two pints of whiskey to a man who said he had come to Amarillo to take his children to Wichita Falls for their vacation. Without contradiction it was shown that the whiskey was taken from the Welborn car and that a partially filled bottle was taken from Paul Welborn's pocket. Rule 434, Texas Rules of Civil Procedure, provides that no judgment shall be reversed on appeal and a new trial ordered unless it can be shown that the error complained of amounted to such a denial of appellants' rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or probably prevented the appellants from making the proper presentation of the case to the appellate court. The mere refusal to permit the whiskey itself to be exhibited to the jury, when considered in connection with the other evidence, did not prevent the appellants from making a proper presentation of their case. The trial court's ruling was not reasonably calculated to cause an improper judgment. Leyendecker et al. v. Harlow, Tex.Civ.App., 189 S.W.2d 706, writ refused w. m.
The appellants' third, fourth, and fifth points of error are concerned with the manner in which the jury answered various special issues. In response to Special Issue No. 1 the jury found (a) that appellant Harold Lee Erwin did not fail to stop at the stop sign, (b) that his stopping at the stop sign was negligence, and (c) that such negligence was the proximate cause of the injuries received by Roy Welborn and his children. Since there is a conflict in the jury's answers to the various subdivisions of this special...
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