Galveston-Houston Breweries v. Naylor

• Decision Date: 10 April 1952
• Docket Number: No. 12345,GALVESTON-HOUSTON,12345
• Citation: 249 S.W.2d 262
• Parties: BREWERIES, Inc., et al. v. NAYLOR et al.
• Court: Texas Court of Appeals

Page 262

249 S.W.2d 262

GALVESTON-HOUSTON BREWERIES, Inc., et al. v. NAYLOR et al.

No. 12345.

Court of Civil Appeals of Texas, Galveston.

April 10, 1952.

On Motions for Rehearing May 15, 1952.

Second Motion for Rehearing Denied June 5, 1952.

Barker & Barker, Armstrong, Bedford & Lambdin, Galveston (Owen D. Barker and Griffith D. Lambdin, Galveston, of counsel), for appellants.

Markwell & Stubbs, of Galveston, and Strasburger, Price, Kelton, Miller & Martin, of Dallas, for appellees.

CODY, Justice.

This is an appeal from a judgment for damages for the death of Henry Joe Naylor, Jr., who met his death in an intersection collision between the automobile which he was driving and a truck-trailer being driven by appellant Mazzucco, who was employed by appellant Galveston-Houston Breweries, Inc. The collision occurred about 9:20 p.m., November 7, 1949, about a mile west of Sugarland upon the Houston-San Antonio highway. The judgment awarded the deceased's widow $30,000 and $10,000 apiece to each of his three minor children. The reasonable cost of the funeral expenses was stipulated by counsel.

The Houston-San Antonio highway, at the point where the collision occurred, consists of two, double-lane, parallel, concrete highways which are separated by a gently-sloping, 55-foot wide esplanade. The southernmost of said two highways is technically known as U. S. Highway 59, while the northernmost is known as U. S. Highway 90-A. At this point the highways run approximately east and west, consequently eastern or Houston bound traffic moves over Highway 59, whereas traffic moving westward or toward San Antonio moves over Highway 90-A. The deceased was driving on Highway 59 toward Houston when the collision occurred. Mazzucco was on that portion of Highway 6 which intersects Highway 59 when the collision occurred.

Highway 6 originates in Galveston and terminates by joining up with the Houston-San Antonio highway. We here present a sketch which graphically shows how Highway 6 joins up respectively with Highway 59 and with Highway 90-A.

It will be noted from the sketch that Highway 6 receives traffic from Highway 59 on its westerly prong and that it feeds traffic to Highway 90-A from its easterly prong. We are not here concerned with the westerly prong of Highway 6 except insofar as it may have afforded the deceased an opportunity to turn off thereon before he reached the intersection with the easterly prong, where the collision occurred.-It might be added here that traffic which is Houston bound does not move over this portion of Highway 6.

It is undisputed that appellant Mazzucco-before he reached the intersection made by the easterly prong of Highway 6 with Highway 59-brought his truck to a full stop. He saw the lights of two approaching automobiles, one of which were the lights of deceased's automobile. The truck was a large, heavily loaded one, and it is not disputed on appeal that there was sufficient evidence to warrant the jury's convicting Mazzucco of negligence in the following particulars, each of which was found to be a proximate cause:

(a) That Mazzucco failed to keep a proper lookout at the time he drove the truck into and across Highway 59.

(b) That he failed to have the truck under proper control.

(c) That at the time he started to drive his truck into and across Highway 59 the automobile driven by the deceased was approaching Highway 6 so closely as to constitute an immediate hazard.

(d) That when Mazzucco started his truck from its stopped position and attempted to drive across Highway 59, deceased's automobile was within such distance of Highway 6 as should have indicated to a person of ordinary prudence, and so forth, that his truck could not make such movement with safety.

The jury convicted the deceased of negligence in the following particulars, each of which was found not to be a proximate cause:

(A) That the deceased failed to keep a proper lookout for automobiles passing over Highway 6.

(B) That as deceased approached Highway 6 he did not have his automobile under proper control.

Appellants predicate their appeal upon 16 points.

As an affirmative defense, appellants pled that the deceased was operating his automobile upon the highway under the influence of intoxicating liquor, in violation of Penal Code Article 802, and that this constituted a proximate cause of the collision.

The court admitted the appellants' evidence in support of their allegations that the deceased was then and there operating his automobile in violation of Penal Code Article 802. This evidence appellants review in their brief under the headings, '(1) The liquor and coke bottles (found in deceased's automobile some 30 minutes after the collision)' '(2) The odor of alcohol', '(3) The blood test' and '(4) Naylor's manner of driving the car.'

Appellees in their turn, likewise, review such evidence. We believe no good purpose would be served in reviewing this evidence as we deem it sufficient to have supported the verdict either way-as to whether the deceased, on the occasion in question, was under the influence of intoxicating liquor while he was driving his automobile. The court, evidently being of the opinion that the issues-inquiring whether the deceased was operating his automobile upon a public highway under the influence of intoxicating liquor, and whether the same was a proximate cause of the collision-were not ultimate issues, but merely evidentiary, declined to submit them.

Upon principle we believe the learned trial court was right. In 38 Am. Jur. 884, the rule is stated as follows:

'Intoxication defeats a recovery by the plaintiff for negligence only in so far as it affects the care which he takes for his own safety. Thus, evidence of plaintiff's intoxication is admissible, not as establishing contributory negligence in itself unless it shows that the drunkenness was in such degree as to cause loss of control of the muscles and senses, but as a circumstance to be weighed by the jury in their determination of the issue whether or not the plaintiff exercised ordinary care for his own safety.'

See also 65 C. J. S., Negligence, § 143 page 784.

By force of Penal Code Article 802, a person who operates an automobile upon a highway while under the influence of intoxicating liquor, is answerable to the State criminally. In prosecutions for murder or negligent homicide arising out of fatal automobile accidents, where the accused is charged with violation of the Article in question, the Court of Criminal Appeals holds that the accused is entitled to a charge to the effect that if he was operating his automobile in the same prudent manner as though he were entirely sober, he cannot be convicted of muder or negligent homicide. Long v. State, 152 Tex.Cr.R. 356, 214 S.W.2d 303, Id., 154 Tex.Cr.R. 587, 229 S.W.2d 366; Burton v. State, 122 Tex.Cr.R. 363, 55 S.W.2d 813, on rehearing. The Court of Criminal Appeals fully recognizes that, where there is a causal connection between the intoxication of the driver of an automobile and the death of a deceased, the accused is guilty of murder or negligent homicide. But as we read the opinions of the Court of Criminal Appeals, the term causal connection is not used in the same sense as proximate cause in civil cases, but signifies that if intoxication while so driving an automobile is a contributing factor which may well be short of proximate cause, then under the criminal laws the accused is guilty of murder or negligent homicide.

It is difficult to see how it can be possible for intoxication, which is a state or condition of mind, in and of itself, to qualify as a proximate cause of injuries which flow from acts of negligence, which may or may not in themselves be the result of the want of judgment induced by intoxication. Our Supreme Court has recognized this where it has held 'Evidence of intoxication, standing alone, does not establish negligence or proximate cause. There must be evidence of other misconduct sufficient to establish, by a preponderance of the evidence, that the person was guilty of performing some act, or failing to perform some act, which an ordinarily prudent person would have performed. Houston & T. C. Ry. Co. v. Reason, 61 Tex. 613; 38 Am.Jur. P. 883, par. 203.' Benoit v. Wilson, Tex.Sup., 239 S.W.2d 792, 798; and see Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50.

In a damage suit, a defendant is sought to be held liable civilly. If he can show that he acted as a reasonably prudent person would have under the same or similar circumstances, he has justified his conduct.-There is a practical reason for holding that evidence of intoxication is merely evidentiary and does not present an ultimate issue. That is to say, if the evidence shows any act of negligence which has been plead as a proximate cause, it would be reversible error for the court to refuse to submit an issue thereon independently of an issue of intoxication. But, if that act itself resulted from intoxication, as it well might, it would be unjust to submit the same matter under two different guises.

The Commission of Appeals sustained a judgment which was based upon a finding that intoxication while operating an automobile upon a public highway was a proximate cause, in Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572. But it not infrequently happens that evidentiary issues are not objected to, and are submitted to the jury. This appears to have been what happened in that case, because the point was not there raised.

In the recent case of Western Cotton Oil Company v. Mayes, 245 S.W.2d 280, the Eastland Court of Civil Appeals has very ably and fully discussed this question. On original hearing the court concluded, primarily upon the authority of...