Hill v. W. E. Brittain, Inc.

• Decision Date: 24 June 1966
• Docket Number: No. 16743,16743
• Citation: 405 S.W.2d 803
• Parties: Mrs. Edward Wayne HILL, Individually and for LaDonya Hill, et al., Appellants, v. W. E. BRITTAIN, INC., et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 803

405 S.W.2d 803

Mrs. Edward Wayne HILL, Individually and for LaDonya Hill et al., Appellants, v. W. E. BRITTAIN, INC., et al., Appellees.

No. 16743.

Court of Civil Appeals of Texas Fort Worth.

June 24, 1966.

Rehearing Denied Sept. 9, 1966.

Ralph M. Hall, Rockwall, J. Alex Blakeley, Dallas, for appellants.

H. J. Loe, Fort Worth, Johnson, Guthrie, White, & Stanfield, and Curtis White, Dallas, for appellees.

OPINION

LANGDON, Justice.

This is an appeal from a judgment non obstante veredicto rendered in favor of appellees by which appellants seek to have the judgment set aside and the cause remanded for trial on the merits.

Mrs. Edward Wayne Hill, individually and on behalf of her minor daughter, LaDonya Hill sued G. W. Smith, Monty F. Renshaw, W. E. Brittain, Inc., and Gerald Harris for the death of Edward Wayne Hill, husband and father, which occurred June 26, 1962, on Highway 114 in Wise County, Texas, as the result of an accident involving a car and gravel truck. Hill was a passenger in the car, a Chevrolet, being driven by Don C. LaGrone. The car was headed west on Highway 114 at a point about 3 miles east of Boyd, Texas, when it collided with the gravel truck, owned by G. W. Smith, headed east and being driven by Monty F. Renshaw.

At the time of the collision a dump truck owned by W. E. Brittain, Inc., was being driven by Gerald Harris east on said highway, headed the same direction and ahead of the truck Renshaw was driving. The truck Harris was driving was not physically or otherwise involved in the collision of the two other vehicles. However, Brittian and Harris were joined in the suit on the theory that the truck Harris was driving had a defective motor which prevented Harris from driving faster and thus its presence on the highway was negligence and a proximate cause of Hill's death.

At the close of the plaintiffs' testimony and again at close of all testimony a motion for an instructed verdict was presented by the appellees. Each was overruled and appellees excepted.

Thereafter, the case against all four defendants was tried to a jury. The issues pertinent to this appeal were:

'8A: Do you * * * that Gerald Harris failed to keep a proper lookout, as that term is defined herein, for vehicles following him on the occasion * * *?' The jury answered 'yes.'

8B--The usual proximate cause issue conditioned on a 'yes' answer to 8A was answered 'no.'

'9A: Do you find * * * Gerald Harris operated * * * so as to wilfully obstruct and impede the normal reasonable and safe movement of traffic * * *?' Followed by 9B--Negligence, 9C--Proximate Cause and 9D--Sole Cause, all of which were unanswered.

'10A: Do you find * * * Gerald Harris operated a heavily loaded truck on * * * when the mechanical condition of the truck created a hazard for other traffic * * *?' This issue was followed by Issues 10B, 10C, 10D identical with 9B, 9C and 9D respectively, none of which were answered.

11A--Inquired as to whether Harris was negligent in failing to drive upon his right hand shoulder of the roadway and was followed by Issues 11B--Proximate Cause, and 11C--Sole Cause, all of which were unanswered.

As above reflected only Issues 8A and 8B were answered. When the jury reported it was unable to answer all of the issues the court made an entry on his docket as follows: '6--12--65 Jury discharged and mistrial declared.'

On August 2, 1965, Brittain and Harris filed their motion to sever as to them; to disregard certain findings of the jury; to ignore certain issues the jury failed to answer and to render judgment in their behalf. According to the fiat attached by the court the motion was set at 10:00 A.M. on September 3, 1965, and a counsel of record for appellees executed his certificate showing copy of motion mailed to opposing attorneys on August 3, 1965.

On December 21, 1965, after notice and hearing of the motion the trial court in sustaining it, severed as to Brittain and Harris, and disregarding the jury's answers to certain issues and its failure to answer others entered judgment that plaintiff, individually and for her minor daughter take nothing from the defendants, Harris and Brittain. A portion of the judgment pertinent to this appeal reads as follows: 'On the 3rd day of September, 1965, came on to be considered, after reasonable notice thereof was given, said motion. * * * Counsel for Plaintiffs and movants appeared and presented to the Court their contentions in support of and in opposition to the motion. Thereupon, the Court, at the request of counsel for both Plaintiffs and said Defendants, extended the hearing on said motion in order that counsel might furnish the Court with written briefs which, in due time, were filed with the Court by said counsel. The Court, after considering said motion, argument (both oral and written) and said briefs, is of the opinion that said motion should be and the same is hereby in all things sustained.'

Complaint is made of failure to serve appellants with a copy of said motion pursuant to Rule 301, Texas Rules of Civil Procedure, and of the action of the court in considering the motion because: (1) It was filed after the expiration of the term in which mistrial was declared and the court was without authority in a subsequent term to entertain the motion; (2) the discharge of the jury and declaration of mistrial restored the litigation to the same status as if no trial had occurred and thus extinguished any verdict a judgment non obstante veredicto could be based upon; (3) upon declaration of a mistrial nothing was pending in the court from the date thereof until the end of the term and the court therefore was without power to entertain the motion under Section (j), Rule 330, T .R.C.P. (4) Further, complaint is made of the court's action in holding as a matter of law that there was no evidence of negligence on the part of Harris which concurred with that of Renshaw in proximately causing the collision between the car and truck; in disregarding the jury's answer to Issue No. 8 and in disregarding the jury's failure to answer other issues because there was pleading and evidence in support of the submission of and an affirmative finding as to each; that such action denied appellants the right of trial by jury; that since the jury reached no verdict and its findings were insufficient to support a judgment for either party the motion for judgment non obstante veredicto amounted to no more than a motion for summary judgment, and the judgment, a holding that plaintiffs' pleading was not sufficient as a matter of law to support the submission of the negligence and proximate cause issues.

We affirm.

The appellants are not denying that they were served with a copy of the motion and notice of the hearing. They complain because it was not by registered mail as provided by Rule 21a, T.R.C.P.

The above recitations from the judgment reflect that the trial court not only found that reasonable notice of the motion was given but that on the date set for the hearing, counsel for appellants and movants appeared and on joint request of counsel the court extended the hearing and permitted counsel to furnish written briefs before acting on the motion.

While it is true that the certificate of service does not specify whether notice was by registered, certified or regular mail we are of the opinion that the prima facie evidence of service plus the appearance and participation above reflected supports the court's conclusion that reasonable notice of the motion was given. See Rule 301, T.R.C.P. and Rules 21a, 'Notice,' and 21b, 'Notice by Certified Mail.' We are of the further opinion that the failure, if any, to comply with the rules of service and notice were waived by the appellants in view of their full participation. Certainly the appellants were in no way prejudiced. There is no showing that they were denied any rights or privileges or that had service been proper, assuming it was not, that a different result would have obtained. There is nothing in this record to suggest that appellants could or would have made a better showing or presented a stronger case had they received notice by registered or certified mail rather than by regular mail.

The purpose of the rules relating to service and notice is to make reasonably certain that all parties to a suit are notified as to the date and time the court has set their matter down for hearing and determination. This is in order that the parties, individually or by counsel may appear, and present their side of the case and to take such action as is deemed appropriate to protect their interest. Thus, service and notice in a technical sense is incidental where the main purpose of obtaining the appearance of all parties and their participation is accomplished.

It is in instances where parties or the attorneys fail to make an appearance and participate in a hearing affecting their rights that an examination of the technical aspects of the rules of service and notice are and should be closely examined and adhered to.

In the case of Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945), the jury failed to agree on any issue. It was discharged. Thereafter the court without notice rendered judgment for plaintiffs and immediately delivered copies thereof to the defendants. The Supreme Court held that the court was not governed by rules pertaining to judgments non obstante veredicto and that no notice of the entry of such judgment to the defendants was required. In its opinion the court stated, 'The statutes and the rules contain no express authority for the procedure which was followed, but they contain no prohibition against it. The judgment rendered was the same judgment that would have been rendered had the court sustained plaintiffs' motion for peremptory instruction before the case was submitted to the jury. A court is authorized to render judgment without submitting the case to the jury if the facts upon which the...