Gaber Co. v. Rawson, 1533

• Decision Date: 09 March 1977
• Docket Number: No. 1533,1533
• Citation: 549 S.W.2d 19
• Parties: GABER COMPANY, Appellant, v. Leila RAWSON et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 19

549 S.W.2d 19

GABER COMPANY, Appellant, v. Leila RAWSON et al., Appellees.

No. 1533.

Court of Civil Appeals of Texas, Houston (14th Dist.).

March 9, 1977.

Rehearing Denied March 30, 1977.

Paul W. Persons, Houston, for appellant.

W. James Kronzer, Jr., Nick C. Nichols, Kronzer, Abraham & Watkins, Russell H. McMains, Fulbright & Jaworski, Warren Y. Pennington, Brackeen & Pennington, Houston, for appellees.

CIRE, Justice.

Defendant appeals from a judgment for plaintiff in a wrongful death action.

This suit arises out of a multiple-vehicle accident in which Bryan Rawson was killed. At about 1:00 p. m. on December 9, 1970, a truck traveling northeast on Houston's Southwest Freeway dropped a number of boxes containing lavatories onto the freeway. The truck did not stop. Shortly thereafter, cars encountering the boxes slowed to avoid hitting them, resulting in a four-car collision. The third car in line, driven by the decedent, was hit by a large truck owned and operated by Containerized Refuse Haulers, Inc. A fire broke out and burned the Rawson vehicle, causing the death of both Rawson and his passenger, Robert E. Nolan.

Appellee Leila Rawson, widow of the decedent, brought this wrongful death action against appellant Gaber Co., a wholesale plumbing distributor, alleging that it was a Gaber Co. truck that dropped the boxes of lavatories, causing the accident and her husband's death.

The case was submitted on 26 special issues, and the jury's affirmative answers to the first four issues formed the basis for finding Gaber Co. liable. In the first special issue, the jury found that the truck from which the lavatories fell was owned by Gaber Co. In the second issue, the jury found that the driver of the truck was engaged in the service of Gaber Co. and in the furtherance of its business. Special issue number three read:

Do you find from a preponderance of the evidence that the boxes of sinks or lavatories could have been prevented from falling off the truck by the exercise of ordinary care upon the part of Gaber Company and its employees?

The fourth issue read:

Do you find from a preponderance of the evidence that such failure was a proximate cause of the injuries, if any, and the death of Bryan Rawson?

The jury failed to find any contributory negligence on the part of the decedent. It found that Mrs. Rawson was entitled to compensation for her pecuniary loss in the amount of $167,000; that the decedent would have been entitled to $10,000 as compensation for his physical pain and mental anguish; that the market value of the Rawson vehicle immediately before the accident was $2,000 and that its value after the accident was $25; and that reasonable funeral and burial expenses were $2,000. Based on this verdict, the court entered judgment that Mrs. Rawson, individually and as administratrix of the estate of Bryan Rawson, recover of Gaber Co. $179,000, plus interest and costs.

Gaber Co. brings this appeal on five points of error. Each of these points attacks the judgment of the trial court on grounds of legal and factual sufficiency. However, appellant has not properly preserved its factual sufficiency points. To do so, they must have been included in a motion for new trial. Appellant's original motion for new trial was timely filed on June 2, 1976. Its amended motion for new trial was filed on June 22, 1976, the last day such motion could have been timely filed. Tex.R.Civ.P. 329b. The amended motion did not contain any ground for new trial asserting that the verdict of the jury was grounded on insufficient evidence or that it was so against the great weight and preponderance of the evidence as to be manifestly unjust. The first two grounds complained of the court's error in overruling its motion for instructed verdict; the next ten grounds complained of the error of the court in overruling defendant's objections to certain issues; and the thirteenth ground complained of the error of the court in "overruling defendant's motion to disregard and set aside Special Issues and the jury's findings thereto . . . ." It was not until July 7, 1976, when appellant filed its "Supplement to Amended Motion for New Trial," that the factual sufficiency points were raised. This supplement had no effect as a motion for new trial. It was not filed within 20 days after the original motion for new trial was filed. Moreover, a party may not file more than one amended motion for new trial. Draper v. Liberty Mut. Ins. Co., 484 S.W.2d 135, 136 (Tex.Civ.App. Texarkana 1972, writ ref'd n. r. e); Tex.R.Civ.P. 329b. Appellant's points of error thus present only questions of law. In passing on these points, we consider only that evidence favorable to the appellee, and draw from the facts proven only those reasonable inferences which tend to support the trial court's judgment. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869, 870 (Tex.Civ.App. Houston (14th Dist.) 1975, writ ref'd n. r. e.).

In its first point of error, appellant asserts that the evidence shows as a matter of law that the boxes on the freeway did not fall from a Gaber Co. truck operated by a Gaber Co. employee in the course and scope of his employment and that there was no evidence to support the jury's finding to that effect.

On the question of ownership, there is the testimony of William L. Gruber and Ruth Anne Vetterick that they saw a Gaber Co. truck drop some boxes at the site of the accident on the afternoon it occurred. They said they were traveling about two car lengths directly behind the truck when a box fell off the back of the truck. They swerved their car to avoid hitting the box, then pulled up beside the driver, blew their horn, and began motioning to him in an attempt to inform him that he was losing boxes. They further testified that they saw more boxes drop off the truck and that after their honking and motioning they saw the driver turn off at the next exit. They proceeded down the freeway and, after crossing an overpass, saw behind them a large cloud of black smoke. Both witnesses testified that the truck carried a sign saying "Gaber Co." Gruber's statement to the police, which was introduced into evidence, stated that the sign he saw was printed on the rear of the truck. However, he and Mrs. Vetterick testified that the sign was positioned over the cab of the truck. W. J. Spaulding, the officer who investigated the accident, testified it occurred on the down slope of the Newcastle overpass on the Southwest Freeway. He saw between seven and ten boxes containing white, 18 inch diameter, lavatory sinks on the eastbound portion of the freeway and took two of these into custody. He took one of the boxes to the Gaber Co. offices the next day and was told by the dispatcher that the company handled such sinks, but that they had not lost any in this accident.

Appellant next contends that Mrs. Rawson failed to prove that the truck was being operated by a Gaber Co. employee within the course and scope...