Garrett v. Brock, 14114.

• Decision Date: 04 October 1940
• Docket Number: No. 14114.,14114.
• Citation: 144 S.W.2d 408
• Parties: GARRETT et al. v. BROCK.
• Court: Texas Court of Appeals

144 S.W.2d 408

GARRETT et al. v. BROCK.

No. 14114.

Court of Civil Appeals of Texas. Fort Worth.

October 4, 1940.

Rehearing Denied November 8, 1940.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Suit for personal injuries and damage to automobile by Mrs. Iona Lebus against E. N. Brock. During the pendency of the suit, plaintiff was married to D. F. Garrett and thereafter the suit was prosecuted in the name of Mrs. Iona Garrett and husband. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Gillen, Francis & Gallagher, of Dallas, for appellants.

T. R. Boone, Kearby Peery, and Charles C. McDugald, all of Wichita Falls, for appellee.

DUNKLIN, Chief Justice.

This suit grew out of a collision between an automobile driven by A. B. Sandler and a truck in charge of one W. C. Barnes, as the agent and employee of E. N. Brock. The collision occurred on the highway about 3½ miles east of Iowa Park, about 9 o'clock in the evening on about April 12th, 1939. At the time of its happening, the truck and the automobile were both headed in an easterly direction toward Wichita Falls, with the truck in front and the automobile following it, and the front end of the automobile struck the rear end of the truck.

Mrs. Iona Lebus, who later married D. F. Garrett, was the owner of the automobile, and she was riding on the front seat with A. B. Sandler, the driver, when the accident happened. Mrs. Yetta Sandler, wife of A. B. Sandler, was also riding in the automobile, and was sitting on the front seat between her husband and Mrs. Lebus.

The suit was instituted by Mrs. Iona Lebus, but during its pendency she was married to D. F. Garrett, and thereafter it was prosecuted in the name of D. F. Garrett and his said wife, as plaintiffs.

Judgment was sought against the defendant, E. N. Brock, for $7,500 damages for alleged personal injuries sustained by Mrs. Garrett, as a result of the collision, plus $75 as expenses incurred for medical treatment for those injuries. Recovery was also sought for damages done to the automobile.

The case was tried to a jury in answer to special issues, and upon their verdict judgment was rendered in favor of the defendant, from which plaintiffs have prosecuted this appeal.

The jury found that on the occasion of the accident and prior to the collision, the driver of the truck brought the same to a stop, and when it stopped it occupied a part of the paved portion of the highway, and was in such position that it obstructed the right-hand side of the main portion of the traveled highway, while the left side of the highway nearly opposite the truck was occupied by another vehicle, and that the stopping of the truck in that position was negligence, which was a proximate cause of the injuries sustained by Mrs. Garrett.

The facts so found by the jury were all alleged in plaintiffs' petition. There were other allegations of negligence on the part of the defendant, namely, the failure of the truck driver to carry at the rear of said truck a lighted lamp, exhibiting one red light plainly visible 500 feet from the rear; and also failure to have a clearance light on the left side of the truck at the rear, displaying a red or yellow light visible for a distance of 500 feet from the rear; also failure to have a reflector at the rear of said truck, located as to height and maintained in such manner to be visible for at least 200 feet when opposed by the light of a motor vehicle displaying lawful undimmed headlights at night.

But the jury made adverse findings on those issues, and appellants have not assigned error to those findings.

The jury further found that $275 would reasonably compensate plaintiff, Mrs. Iona Garrett, for the injuries she sustained as a result of the collision, and that $43 was the reasonable value of physician's services in treatment for those injuries.

There were further findings that the reasonable market value of plaintiffs' automobile immediately before the collision was $650, and its reasonable market value after the collision was $125; and further, that the reasonable market value of the car immediately after it was repaired was $400. In this connection, we will state that according to the undisputed evidence the plaintiffs had those repairs made and that the repair bill was paid by an insurance company who carried accident insurance on the automobile. There was a further finding that the collision in question was not an unavoidable accident. Other special issues, with the findings of the jury thereon, were as follows:

"23. Do you find from a preponderance of the evidence that the plaintiff and A. B. Sandler were on a joint enterprise just prior to and at the time of the collision in question? Answer: Yes.

"24. Do you find from a preponderance of the evidence that A. B. Sandler was driving plaintiff's automobile at the time and just prior to the time in question, in excess of 45 miles per hour? Answer: No."

"26. Do you find from a preponderance of the evidence that A. B. Sandler was driving plaintiff's automobile at the time and just prior to the collision in question, at an excessive rate of speed? Answer: Yes.

"27. Do you find from a preponderance of the evidence that such rate of speed at which A. B. Sandler was driving said car in question, as inquired about in Special Issue No. 26, was the proximate cause of the injuries to the plaintiff? Answer: Yes.

"28. Do you find from a preponderance of the evidence that A. B. Sandler at the time and just prior to the collision in question failed to keep a `proper lookout' for traffic on the highway in question? Answer: Yes.

"29. Do you find from a preponderance of the evidence that such failure on the part of A. B. Sandler to keep a proper lookout, if you have so found he did fail, was a proximate cause of the damage to plaintiff, if any? Answer: Yes."

"38. Do you find from a preponderance of the evidence that A. B. Sandler failed to use `ordinary care' toward having plaintiff's car under control just prior to the time of the collision in question? Answer: He failed to use ordinary care.

"39. Do you find from a preponderance of the evidence that such failure on the part of A. B. Sandler to have plaintiff's car under control at the time in question, as inquired about in the preceding issue, was a proximate cause of plaintiff's damage, if any? Answer: Yes."

"43. Do you find from a preponderance of the evidence that A. B. Sandler discovered the position of the truck prior to the time of the collision in question? Answer: Yes."

"49. Do you find from a preponderance of the evidence that A. B. Sandler, in approaching the place where the collision occurred, failed to use ordinary care in reducing the speed of his car before driving the same past the warning signs, and car, on the highway, belonging to Mr. Beverly? Answer: Yes.

"50. Do you find from a preponderance of the evidence that such failure inquired about in the preceding issue on the part of A. B. Sandler was a proximate cause of the damages of the plaintiff, if any? Answer: It was a proximate cause."

The issue of joint enterprise, submitted in Special Issue No. 23, was specially pleaded by the defendant, and the negligence of Sandler, found by the jury in issues above shown, was pleaded as contributory negligence chargeable to Mrs. Garrett, by reason of such joint enterprise. Other allegations of contributory negligence of Sandler were not sustained by the jury, and therefore are not necessary to be mentioned here.

Special Issue No. 42 and the jury's answer thereto are as follows: "Do you find from a preponderance of the evidence that the acts and conduct of A. B. Sandler in driving the plaintiff's automobile prior to and at the time of the collision was not the sole proximate cause of the collision? Answer: It was not the sole cause."

According to further findings of the jury, Mrs. Garrett discovered the position of the truck prior to the time of the collision but that such discovery was not in sufficient time to enable her to avoid the collision by the exercise of ordinary care and the use of all the means at her command.

After the verdict was returned, the plaintiffs filed their motion for the court to disregard the findings of the jury in answer to Special Issue No. 23 of joint enterprise, because not supported by any competent evidence; and as a corollary thereto to set aside the further findings of contributory negligence of A. B. Sandler, the driver of the automobile, because the same was not imputable to plaintiffs in the absence of a sufficient finding of joint enterprise. Plaintiffs further prayed for judgment in their favor for damages occasioned by defendant's negligence as found by the jury.

That motion was based on Vernon's Texas Civil Statutes, Art. 2211, as amended by the Acts of the 42nd Legislature in 1931.

Much testimony bearing on the issue of joint enterprise is cited in appellants' briefs, which we shall not undertake to set out in full here. The following is the substance of the facts established by the undisputed testimony of Mrs. Garrett and Mr. Sandler and his wife. Mr. and Mrs. Sandler planned a trip from Electra to Wichita Falls to attend a church social at the Holt Hotel, given by the Women's Auxiliary of the Jewish Synagogue, and invited Mrs. Lebus to accompany them in their car and the invitation was accepted. When they were ready to start on the trip, Mr. Sandler discovered that his car was not in proper running condition. Mrs. Lebus then proposed that her car be used instead of the Sandler car, and delivered to him the keys of her car, with the understanding he was to drive it. Sandler proceeded to do the driving. Mrs. Lebus and Sandler occupied the front seat of the car, and Mrs. Sandler sat between them on that seat.

Mrs. Lebus testified in part as follows:

"A. If he (Sandler) had been driving careless or reckless why I would have stopped him.

"* * * * *

"Q. Why would you have stopped him? It was...