Lemos v. Montez

• Decision Date: 22 September 1983
• Docket Number: No. 13-82-223-CV,13-82-223-CV
• Citation: 659 S.W.2d 145
• Parties: Mel LEMOS, Appellant, v. Alfred R. MONTEZ and Seven-Up Bottling Co. of Corpus Christi, Appellees.
• Court: Texas Court of Appeals

Page 145

659 S.W.2d 145

Mel LEMOS, Appellant, v. Alfred R. MONTEZ and Seven-Up Bottling Co. of Corpus Christi, Appellees.

No. 13-82-223-CV.

Court of Appeals of Texas Corpus Christi.

Sept. 22, 1983.

Rehearing Denied Oct. 27, 1983 (overruled).

Russell H. McMains, Edwards & Perry, Corpus Christi, for appellant.

J. Chris Rodriguez and Douglas E. Chaves, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellees.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

KENNEDY, Justice.

This is an appeal from a take-nothing judgment rendered in a automobile-truck collision suit.

On December 27, 1979 a 1974 GMC truck owned by 7-Up--Coca Cola Bottling Company backed into a 1973 Volkswagon in which appellant was a passenger. The collision occurred on Mexico Street about thirty-five (35) feet from its intersection with Leopard Street in Corpus Christi, Texas. Upon trial before a jury, special issues were answered against appellant (plaintiff) and a take nothing judgment was entered. Appellant timely perfected this appeal.

In his first and second points of error, appellant complains of the trial court's instruction number six, which reads in whole:

"The mere happening of a collision of motor vehicles is not evidence of negligence. An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it."

Appellant argues that the first sentence of the instruction is an impermissible comment on the weight of the evidence and not properly includable as a part of the definition of unavoidable accident. In addition, appellant argues that the trial court erred in the submission of the unavoidable accident instruction since there was no testimony in the record to justify it's submission. We disagree with both of appellant's contentions.

Appellant cites the case of Irick v. Andrews, 545 S.W.2d 557 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.) to support his contention that the trial court erred by including the following sentence before the definition of unavoidable accident:

"The mere happening of a collision of motor vehicles is not evidence of negligence."

In Irick, a medical malpractice case, a physician specializing in radiology was sued for negligence in administering radiation treatment for the removal of plantar warts on plaintiff's left foot. The Court held that the following instruction was an improper statement of the law as applied to that case:

"You are instructed that an unexpected result, bad result, failure to cure, or any other circumstance showing merely a lack of success, is not evidence of negligence on the part of the defendant physician; negligence cannot be inferred solely from a failure to cure or unexpected result." (Emphasis Added)

The Court held that since there was some evidence that the physician had administered an improper dosage of radiation, the jury was entitled to consider the evidence in determining the question of the doctor's negligence. Thus, it was improper for the Court to instruct the jury otherwise. In our case, unlike the situation in Irick, the Court did not instruct the jury that they could not find negligence on the part of either or both of the parties involved. Nor can it be argued that the statement alone is an improper statement of the law. See Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (1942). Appellant's reliance on the Irick decision is misplaced.

Appellant also cites the case of Levermann v. Cartall, 393 S.W.2d 931 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.). In Levermann, also a medical malpractice case, the trial court submitted the following instructions:

"You are further instructed as a part of the law of this case, that a medical doctor is not an insurer or guarantor of his work; neither is he responsible in law for an honest mistake in judgment, unless such mistake is due to a want of ordinary care, as the term 'ordinary care' has been defined hereinabove."

The Court of Civil Appeals held that this instructions was improper since it did not refer to any particular issue or term used in the charge, was not necessary to assist the jury in answering any issue, and because there was no pleading or evidence of "honest mistake." In our case, we hold that the first sentence of the instruction could reasonably be considered as assisting the jury in understanding the negligence issue, particularly in light of the unavoidable accident definition. As such, the instruction was not improper.

Appellant argues that the sentence in question is an impermissible comment on the weight to be given the evidence. In Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App.-- Amarillo 1971, writ ref'd n.r.e.), the Court said:

To constitute a comment on the weight of the evidence, the special issue must be worded so as to indicate an opinion by the trial court as to the verity of the fact inquired about. In our opinion the issue did not assume the nature of the answer.

This principle applies equally to an instruction in the charge. In McDonald Transit, Inv. v. Moore, 565 S.W.2d 43, 45 (Tex.1978), our Supreme Court said:

Under Rule 277 it is mandatory that an instruction not be worded so as to indicate the opinion of the trial judge as to the verity or accuracy of the facts in inquiry. (emphasis added)

The First Court of Civil Appeals in Houston has approved a similar instruction as submitted in our case which "called the attention of the jury to the fact that an accident may occur which was not proximately caused by the negligence of any party to it, and that the mere occurrence of the accident does not necessarily imply negligence on the part of any party to it." Molina v. Payless Foods, Inc., 615 S.W.2d 944, 947 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). In our case, the instruction does not indicate any opinion by the trial court that the occurrence was or was not an unavoidable accident. We conclude that the instruction is not a direct comment on the weight of the evidence. See Tex.R.Civ.P. 277.

We note that the better practice in submitting the unavoidable accident instruction is to follow strictly the guidance of the Supreme Court when they said that the purpose in submitting the issue is "fully accomplished when the jury is told that the occurrence in question was an unavoidable accident if it happened without the negligence of either of the parties to the suit." Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941). While we do not specifically approve of the language used in the instruction in this case we are not convinced that the error, if any, was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P. Davis v. Thompson, 581 S.W.2d 282 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.).

Nor was it improper for the trial court to submit an instruction on unavoidable accident. As our Supreme Court noted in Wheeler, supra:

"The only legitimate purpose to be served in submitting unavoidable accident is to call the...