Higginbotham v. O'Keeffe, 6982

• Decision Date: 31 October 1960
• Docket Number: No. 6982,6982
• Citation: 340 S.W.2d 350
• Parties: John Lanham HIGGINBOTHAM et al., Appellants, v. Violet M. O'KEEFFE et al., Appellees.
• Court: Texas Court of Appeals

Page 350

340 S.W.2d 350

John Lanham HIGGINBOTHAM et al., Appellants, v. Violet M. O'KEEFFE et al., Appellees.

No. 6982.

Court of Civil Appeals of Texas, Amarillo.

Oct. 31, 1960.

Rehearing Denied Nov. 28, 1960.

Cade & Bowlin, Lubbock, Freeman & Curry, Seminole, for appellants.

New & Townes, Denver City, for appellees.

DENTON, Chief Justice.

This is a damage suit brought by Violet M. O'Keeffe, individually and as next friend of her five minor children, against John Lanham Higginbotham, Higginhbotham Land and Cattle Company and Higginbotham Bros. Company, which grew out of a three-car collision resulting in the death of William T. O'Keeffe, the husband and father of the plaintiffs. The alleged collisions occurred on January 29, 1959, in Yoakum County, Texas. The wreck involved three vehicles, a Ford driven by the deceased, a Buick driven by appellant John Lanham Higginbotham, and a pickup owned by the El Paso Natural Gas Company. The latter company is not a party to this suit. At the close of the plaintiffs' testimony, the trial court granted a peremptory instruction as to defendant Higginbotham Land and Cattle Company and this defendant is not a party to this appeal.

The case was tried before a jury, and based upon the answers of the jury to the special issues submitted, the trial court rendered judgment for plaintiffs against defendants John Lanham Higginbotham and Higginbotham Bros. Company, jointly and severally. These defendants duly perfected their appeal and bring forward nine points of error.

The trial court submitted special issues inquiring as to the negligence and proximate cause of various acts of both defendant Higginbotham and deceased William T. O'Keeffe which were alleged by the respective parties. The jury found in its verdict: that the defendant Higginbotham was operating his automobile at an excessive rate of speed under the attending circumstances, that such act was negligence, and that such negligence was a proximate cause of the collision resulting in the death of O'Keeffe; that the defendant Higginbotham attempted to pass the vehicle driven by O'Keeffe at a time when he could not do so with safety, that it was negligence, and that it was a proximate cause of the collisions resulting in the death of O'Keeffe; that defendant Higginbotham failed to have his automobile under proper control, that such failure was negligence, and that it was a proximate cause of the collisions and resulting death of O'Keeffe; that defendant Higginbotham failed to apply his brakes in time to avoid the collision, that such failure was negligence, and that it was a proximate cause of the collisions and the resulting death of O'Keeffe; that defendant Higginbotham failed to keep a proper lookout, that such failure was negligence, and that it was a proximate cause of the collisions in question and resulting death of O'Keeffe; that defendant Higginbotham failed to yield the right-of-way to O'Keeffe, that such failure was negligence, and that it was a proximate cause of the collisions; and that defendant Higginbotham was driving his automobile under the influence of intoxicating beverages, that such act was negligence, and it was a proximate cause of the collisions in question; that such act of driving his automobile while under the influence of intoxicating beverages was gross negligence, that such gross negligence was a proximate cause of the collision in question; that the failure of defendant Higginbotham to keep his automobile under proper control was gross negligence, that such gross negligence was a proximate cause of the collisions in question; that defendant Higginbotham's operation of his automobile at an excessive rate of speed was gross negligence, that such gross negligence was a proximate cause of the collisions in question. The jury further found that the deceased O'Keeffe did not driver his automobile on his left side of the road, that the said O'Keeffe did not fail to keep a proper lookout, that O'Keeffe was not subject to spells of unconsciousness on the occasion in question, and that O'Keeffe did not lean over to his right to the point where he could not see the road ahead of him, and that the collision in question was not an unavoidable accident. The jury awarded his surviving widow damages in the amount of $75,000 and to each of the five minor children a recovery of $15,000, assessing a total of $150,000 damages and the further assessment of $20,000 exemplary damages.

Each of the defendants previously filed a motion for an instructed verdict, and after the verdict was returned the defendants filed a motion for a judgment non obstante veredicto. As previously stated, the defendant Higginbotham Land and Cattle Company was granted a peremptory instruction but these two motions in behalf of the remaining two defendants were overruled. Based on the verdict of the jury the trial court entered a judgment for the plaintiffs for the sum of $150,000 actual damages against defendants John Lanham Higginbotham and Higginbotham Bros. Company, jointly and severally, for the sum of $20,000 exemplary damages against the defendant John Lanham Higginbotham individually.

Appellants' first two points of error complain of the trial court's refusal to instruct a verdict for defendants, and its failure to render judgment in the defendants' favor, notwithstanding the verdict. These two points of error deal only with the question of law of 'no evidence.' Any points of error relating to motions for instructed verdict or motions for judgment notwithstanding the jury's verdict are said to be 'no evidence' points of error regardless of the language used in the points of error. "No Evidence' and 'Insufficient Evidence' Points of Error,' by Justice Robert W. Calvert, 38 Tex.Law Review 361 (1960). The sufficiency of the evidence is therefore not raised by the appellants' first two points of error. It follows that this Court has no jurisdiction to pass on the question of sufficiency of the evidence to support the findings of the jury. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660; Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164. We must examine the evidence to determine whether there is evidence of probative value which with the reasonable inferences therefrom will support the findings of the jury in answer to special issues submitted. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359; Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497.

In order to make this determination we must briefly review the evidence presented in this rather lengthy trial. Plaintiffs pleaded that the accident occurred on January 29, 1959 at about 12:30 p. m. on Highway 214 approximately six miles north of Denver City, Yoakum County, Texas. The deceased William T. O'Keeffe was driving at a lawful rate of speed in his proper lane in a southerly direction; that at a point 275 feet south of the intersection of Highway 214 and Highway 396 the automobile driven by defendant Higginbotham suddenly crashed into the rear of the O'Keeffe car knocking it into the path of an oncoming vehicle in the east lane thereby causing a head-on collision with the third vehicle, resulting in the death of O'Keeffe. Neither car carried passengers other than the two drivers. Plaintiffs further pleaded that just prior to the initial contact between Higginbotham's Buick and O'Keeffe's Ford, Higginbotham had moved to the left, in an effort to pass the O'Keeffe automobile, but seeing the pickup coming from the south Higginbotham cut back to the right and in so doing struck the right rear of the O'Keeffe automobile with the left front of the Buick driven by Higginbotham. It was plaintiffs' contention that this was the impact that knocked the O'Keeffe automobile into the path of the oncoming pickup.

The defendants pleaded that Higginbotham was following several car lengths behind the O'Keeffe car, and did pull slightly to the left in order to pass the O'Keeffe car, but on noticing the oncoming pickup, Higginbotham pulled back into the right lane behind the O'Keeffe car; that about this time O'Keeffe slumped over or bent over to his right, and as he did so the O'Keeffe car moved to the left and collided with the oncoming pickup. Defendants further pleaded that the O'Keeffe car then swung around and that the rear of the O'Keeffe car struck the left front of the Higginbotham automobile, alleging that the latter impact occurred in the west or right lane of the highway. Thus the pleadings of the defendants are to the effect that Higginbotham had nothing whatsoever to do with causing the collision resulting in the death of O'Keeffe.

Plaintiffs relied on numerous witnesses including a highway patrolman, Jack Sims, who appeared at the scene shortly after the collisions and investigated the movements of the vehicles. He located the points of both impacts by skid marks and debris of dirt and tail light glass. Sims placed one point of impact in the right hand lane for south-bound traffic and the second point of impact in the left hand lane for south-bound traffic was fixed by him to be 37 feet south of the point of the impact in the west lane. These findings along with 37 feet of skid marks made by the defendant's Buick extending north of and to the point of impact in the west lane, and the location of damage to the Ford and Buick resulted in the conclusion of Sims, who had qualified as an expert in this field, that the Buick of Higginbotham had first struck the O'Keeffe Ford as pleaded by plaintiffs. Other witnesses who came on the scene shortly after the collision, substantiated various portions of Sims' testimony pertaining to skid marks, location of debris, and damage to the automobiles.

Defendants on the other hand presented testimony of several witnesses including one Jim Willis, who testified he was driving several hundred yards behind the two vehicles and that he saw the accident. His testimony submitted by deposition was to the...