Houser v. Sunshine Laundries & Dry Cleaning Corp., 14718

• Decision Date: 05 February 1969
• Docket Number: No. 14718,14718
• Citation: 438 S.W.2d 117
• Parties: Isabelle C. Fooshe HOUSER et vir, Appellants, v. SUNSHINE LAUNDRIES & DRY CLEANING CORPORATION, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 117

438 S.W.2d 117

Isabelle C. Fooshe HOUSER et vir, Appellants, v. SUNSHINE LAUNDRIES & DRY CLEANING CORPORATION, Appellee.

No. 14718.

Court of Civil Appeals of Texas.

San Antonio.

Feb. 5, 1969.

Rehearing Denied March 5, 1969.

Chapin & Narciso, San Antonio, for appellants.

Beckmann, Stanard, Wood & Keene, San Antonio, for appellee.

KLINGEMAN, Justice.

Damage suit involving a collision in San Antonio, Texas, between a panel truck owned by Sunshine Laundries & Dry Cleaning Corporation, also known as Sunshine Laundry & Dry Cleaning Corporation, appellee herein, being driven by Antonio Islas, an employee of appellee, and a Ford station wagon being driven by John Adderley, in which appellant herein, isabelle C. Fooshe Houser, was riding. The jury found acts of primary negligence against appellee which were a proximate cause of the collision. The jury also found that the failure of John Adderley, immediately prior to the collision, to turn the station wagon to his left was negligence, and that such negligence was a proximate cause of the collision, but found that on the occasion in question Mrs. Houser did not have a right to control the operation of the station wagon which was borrowed by her from her former husband. The trial court granted appellee's motion to disregard the jury's answer to such right to control issue and entered a take-nothing judgment.

Although appellants attack this judgment by numerous points of error, their first point requires a reversal if sustained. By such point of error, appellants contend that the only issues on which a judgment could be entered in favor of appellee were Special Issues Nos. 20 and 21, pertaining to the failure of John Adderley to turn the station wagon to his left, and that the court was in error in submitting such special issues because there were no pleadings to support them. We agree with appellants. Appellee in one of its earlier pleadings plead contributory negligence in general terms, to which appellant specially excepted, and such exception was sustained by the trial court. A defendant may plead contributory negligence in general terms and, if not excepted to, the plea will authorize testimony to establish the fact of negligence, but if the opposite party desires more specific allegations as to the contributory negligence, he is entitled to have them upon his lodging of an appropriate exception to such general pleading. Agnew v. Coleman County Elec. Co-op., 153 Tex. 587, 272 S.W.2d 877 (1955).

After the trial court had sustained appellants' special exception, appellee pleaded various specific acts of contributory negligence against Mrs. Houser, but had no pleadings with regard to the failure of John Adderley to turn the automobile to his left. Appellants objected to the submission of such special issues on the ground that there was no pleading to support their submission. Appellee presented to this Court a motion for a supplemental transcript in which it alleged that one of the points of error of appellants is, that one of the special issues in the verdict which is answered against appellants was not supported by the pleadings, and that appellee sought and was granted leave of the trial court to file a trial amendment at the close of evidence and before the charge of the court was submitted to the jury, and did thereafter write, in longhand, a trial amendment to support such issue, and filed same with the clerk of the trial court. Appellants filed a reply to such motion in which they deny that appellee filed any trial amendment to support such special issue, and attached to such reply, affidavits of two deputy clerks that they had searched the records in such cause and did not find any hand-written, or any type of trial amendment among the records of the cause, and that the District Clerk's docket record does not show any trial amendment having been filed. Appellants also attached to such reply an affidavit of their attorney, in which he states that to his personal knowledge appellee did not file with the clerk of any court any trial amendment, hand written or otherwise, in said cause, and that on several occasions he has personally examined all the pleadings and filed papers in said cause, and that there are no trial amendments among them; that he also checked with the clerk of the trial court to see if he was holding or had any trial amendments in the cause, and the clerk stated there was none; and that thereafter he inquired of the official court reporter if she had in her possession any trial amendments or other pleadings and she stated she had none. Ample opportunity was given to appellee by this Court to tender a supplemental transcript with such trial amendment but appellee was unable to do so. Therefore, the record before us contains no such trial amendment, nor any pleading pertaining to the failure of John Adderley to turn the station wagon to his left immediately prior to the collision. There is no contention, and it cannot be said that this issue was tried by implied consent, as appellants timely objected to the issue on the grounds that there was no pleading. Harkey v. Texas Employers' Ins. Ass'n, 146 Tex. 504, 208 S.W.2d 919 (1948); Camco,...