Hicks v. Morgan

• Citation: 259 S.W. 263
• Decision Date: 13 February 1924
• Docket Number: (No. 1028.)
• Parties: HICKS v. MORGAN.
• Court: Court of Appeals of Texas

259 S.W. 263

HICKS v. MORGAN.

(No. 1028.)

Court of Civil Appeals of Texas. Beaumont.

February 13, 1924.

Rehearing Denied February 28, 1924.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by D. J. Hicks against H. W. Morgan. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Smith & Jackson, of Beaumont, for appellant.

Howth & O'Fiel, of Beaumont, for appellee.

HIGHTOWER, C. J.

This suit was filed in the county court at law of Jefferson county, by the appellant, D. J. Hicks, against the appellee, H. W. Morgan, in which appellant sought to recover damages to his automobile, alleged to have been negligently caused by the appellee, in the sum of $404. Appellant alleged, in substance, that on November 24, 1921, he was traveling along the Fannett road in said county, one of the principal highways, in a southerly direction from the city of Beaumont, toward the town of Fannett, and that just before reaching the town of Fannett his car collided with appellee, who was traveling the same road in a northerly direction at the time; that appellant, in traveling the road at the time, was on the right-hand side thereof, as he should have been, and was using due and proper care, but that the appellee at the time was traveling in the opposite direction, and was on the left-hand side of the road, where he had no right to be and in violation of the law, and the rule of the road, and that appellee continued to drive his car on the left-hand side of the road, and seemed to make no effort to change his car to the right-hand side of the road, and that as the two cars approached each other and when within 15 to 25 feet of each other, appellant concluded that appellee did not intend to change his car to the right-hand side of the road, and would not do so, but, on the contrary, that he would keep approaching on the left-hand side of the road and thereby come in contact with appellant's car and inflict injury to the same and to appellant and his companion in his car; that in order to prevent what appeared to appellant to be an inevitable collision between his car and that of appellee, when the two cars were somewhere between 15 and 25 feet apart, appellant suddenly swerved or turned his car to the left at an angle of about 35 degrees, with a view to missing the appellee's car, but that about the same instant he did so appellee also suddenly turned or swerved his car to the right, and in doing so brought his car in direct contact and collision with appellant's car, causing the damage complained of.

Appellee, Morgan, answered by general demurrer and general denial, and then by way of cross-action against appellant sought to recover damages to his car in the sum of $125, and also to recover $50 damages because he was deprived of the use of his car for a period of 10 days. Appellee's allegations of negligence against appellant were, in substance, the same as made by appellant against him. He alleged that he was traveling north at the time and was on the right-hand side of the road, where he should have been, and that appellant's car was approaching from the north, and that appellant was traveling on the left-hand side of the road, where he should not have been, and at a high rate of speed, to wit, 25 miles per hour or more, and that as the two cars approached in dangerous proximity, as it appeared to appellee, he reduced the speed of his car with a view to stopping it, and got as far over on his side of the road as he could at the time, but that appellant negligently ran his car against appellee's car and damaged it to the extent of $125.

Appellant replied by supplemental petition, in which he denied the allegations of the appellee's answer.

The case was tried with a jury and was submitted upon special issues, and, upon the verdict as returned, judgment was entered by the court that neither party recover as against the other, and that the costs of suit be apportioned between them.

Appellant's assignments of error and propositions relied on for reversal relate mainly to the court's charge; that is, to the form and substance of the questions propounded and to the court's action in refusing charges and issues requested by appellant.

In the court's charge, 26 questions were submitted for the jury's answers, but the last three relate only to the items of damage claimed by the parties. As to the first 23 questions propounded to the jury, it is appellant's contention, in substance: (1) That they called for the jury's answers to mere evidentiary matters, and not to ultimate facts; (2) that the questions as framed made too prominent the contention of appellee that the collision of the cars was caused by the fault and negligence of appellant; (3) that the questions were leading in form and the phraseology and arrangement were such as to be prejudicial to appellant; (4) that some of the questions submitted relate to no issue made by the pleadings of either party; (5) that the questions were so numerous and so framed as to mislead and confuse the jury in their determination of the real fact issues as made by the pleadings and evidence.

The record shows that these objections were timely made and presented before the charge was given to the jury, and that they were all overruled. It would serve no useful purpose to here show what these 23 questions were and how they were framed, and, besides, it would carry this opinion to an unnecessary and unreasonable length to do so; they cover 7 typewritten pages. We will say, however, that we have given the contentions of both parties in this connection careful consideration, and have reached the conclusion that some of the many questions submitted to the jury in this case are clearly subject to all the objections interposed by appellant, as we have just stated them. It is clear to us that at least three-fourths of the first 23 questions called for answers of the jury to mere evidentiary matters instead of any ultimate fact in this case, and therefore such questions were improper, as has been held in numerous cases in this state. Such questions can serve no purpose other than to confuse and divert the minds of the jurors from the real and determinative fact issues before them, and they are highly calculated to elicit such answers by the jury as to leave the verdict as a whole in such irreconcilable conflict and contradiction that no valid judgment could be based upon it. Cushman v. Masterson (Tex. Civ. App.) 64 S. W. 1031; Haile v. Johnson, 63 Tex. Civ. App. 199, 133 S. W. 1088; Oaks v....