Leyendecker v. Harlow

• Citation: 189 S.W.2d 706
• Decision Date: 19 July 1945
• Docket Number: No. 11721.,11721.
• Parties: LEYENDECKER et al. v. HARLOW.
• Court: Texas Court of Appeals

Page 706

189 S.W.2d 706

LEYENDECKER et al. v. HARLOW.

No. 11721.

Court of Civil Appeals of Texas. Galveston.

July 19, 1945.

Rehearing Denied October 11, 1945.

Appeal from District Court, Chambers County; Clyde E. Smith, Judge.

Action by R. H. Harlow against J. B. Leyendecker and others for personal injuries and damages to plaintiff's automobile as the result of defendants' alleged negligence in leaving their truck on the main traveled portion of highway, at night, unlighted and unattended. Judgment for plaintiff, and defendants appeal.

Affirmed.

Dyess & Dyess, of Houston, for appellants.

Everett H. Cain, of Anahuac, and Helm & Jones and Albert P. Jones, all of Houston, for appellee.

GRAVES, Justice.

This appeal is from an $18,800 judgment in the appellee's favor against the appellants (J. B. and C. B. Leyendecker), entered by the district court of Chambers County partly upon a jury's answers on special issues submitted and partly from the recited findings of the court itself "from the undisputed evidence," as for damages resulting from personal injuries, along with a diminished value to his automobile, found by the court and jury to have been visited upon the appellee by the negligence of appellants in having left their truck on the main traveled portion of the highway, along which he was driving his own car, until nightfall on July 22 of 1943, unlighted and unattended, into the rear of which, he, having no warning of nor knowledge of such condition, inadvertently drove his car, to his damage as indicated.

Through 52 points, based upon a statement of facts of 440 pages, and a printed double-sized brief of 182 pages, supplemented by oral arguments heard upon the submission of the appeal, appellants earnestly protest against such determination so adverse to them below.

Their first contention, presented in their points 1 to 6, inclusive, is that the trial court erred in striking out and dismissing their plea of privilege to be sued herein in Harris County, where they resided instead of in Chambers County, where the venue had been laid against them, on December 12 of 1944, and in ordering a trial on the merits to then proceed in such County of Chambers.

In the undisputed state of the record, this presentment is overruled, upon the conclusion that appellants were shown to have waived any right they might otherwise have had to urge such plea, at that late date; the suit had been originally instituted on March 24 of 1944 in the Chambers County district court by appellee, R. H. Harlow, as plaintiff, with the two appellants under their trade-name of "U. S. Truck Line," along with the driver of their truck, James Moody King, in his individual capacity, as defendants; King, who then resided in Chambers County, being sued jointly and severally with appellants; all three such original defendants below appeared by the same counsel (Mr. Dyess, counsel for appellants in this court), and severally answered to the merits of the cause on April 19 of 1944; to meet an exception contained in that original answer, the appellee, Harlow, filed in that court an amended petition on April 24 of 1944, specifically naming the two Leyendeckers as the individuals composing the partnership through which these appellants were so operating the truck herein involved, which was driven by James Moody King, under their trade-name of "U. S. Truck Line."

Thereafter, on May 1, 1944, on the call of the regular setting of the cause for trial, the defendant, J. M. King, such driver of the truck, filed a plea in abatement of the suit as against himself in that court, pursuant to the "Soldiers and Sailors Civil Relief Act," therein advising the court that he had been inducted into the armed forces of the United States; thereupon, appellee, Harlow, in open court dismissed his suit therein against King, but announced ready for trial against appellants, under their trade-name of "U. S. Truck Line"; in consequence, appellants then moved for and procured a continuance to the next term of that court, because of the absence of King, a material witness; the deposition of the truck driver, King, was secured in the interval between the granting of the continuance to U. S. Truck Line and the opening of the December, 1944, term of court. The second amended petition of appellee Harlow was filed on November 22, 1944; the name of King was omitted therefrom as a defendant, in accordance with the dismissal of him in open court of May 1, 1944. At the December term (1944) the case was regularly set for trial on December 11. On that date appellants filed below their plea of privilege. This plea was not filed before the beginning of the December term, but actually on the date of trial. Appellee had been furnished with a copy of this plea on December 9, Saturday before the Monday, on which the trial began.

"When the case was called for trial on December 11, 1944, the filing of the plea of privilege on that morning was called to the attention of the trial judge. Counsel for plaintiff orally moved the court to strike the plea of privilege and to proceed with the trial because said plea had not been filed in due order and had not been filed seasonably. This motion was granted. An exception to this action of the court was allowed. Defendants did not prosecute any appeal from this order, but bring forward assignments of error in the appeal from the judgment rendered in the trial on the merits of the case."

As this court reads them, our authorities have, on analogous facts, foreclosed all these complaints against such disposition of the venue question below. Rule 385, Texas Rules of Civil Procedure. Such a final order disposing of a plea of privilege, which expressly is appealable, should be appealed from by filing the record in the appellate court within 20 days thereafter, which was not done in this instance.

In the second place, the appellants clearly waived their then-existing right to file their plea of privilege by so filing their answer to the merits of the cause at the preceding term of the court, they, as the "U. S. Truck Line," and their driver of the truck at that time, James Moody King, having, as recited supra, been separately sued jointly and severally. Furthermore, no change whatever of any character in the cause of action so asserted against any one of such original defendants had been made in the appellee's pleadings below, except the mere dismissal, by his oral motion made in open court, of such truck driver as a party defendant.

On the legal equivalent of these facts, the trial court's action is supported by the holding in Barclay v. Deyerle, 53 Tex.Civ. App. 236, 116 S.W. 123, writ of error refused. To the same effect are these further authorities: McClure v. Pair, Tex. Civ.App., 214 S.W. 683; Foster v. Gulf, C. & S. F. R. Co., 91 Tex. 631, 45 S.W. 376; where it was held that the making of a new party plaintiff did not revive the right of a defendant to file a plea of privilege, and that, having answered to the merits, the right to attack the venue as against the original plaintiff had been lost; Holt v. Farmer, Tex.Com.App., 56 S.W.2d 633; Dickson v. Scharff, Tex.Civ.App., 142 S.W. 980; Gold v. Insall, Tex.Civ.App., 8 S. W.2d 542; Wolf v. Willingham, 48 Tex. Civ.App. 536, 107 S.W. 60.

In other words, in the distinctive circumstances above recited as obtaining here, it seems clear that a plea of privilege in the way this suit was brought was just as available to the appellants in April as it was in December of 1944, under the holding of our Supreme Court in Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900, 902, had they then asserted it in April; but, having instead entered a general denial at that time, they sinned away their day of grace by not having done so, and by thereafter waiting seven months beyond the dismissal of their original co-defendant in open court and offering a belated plea of privilege on the date of this trial on December 11 of 1944; especially when at no time had there ever been any change in the cause of action against them.

Neither is the fact that the appellee's motion to strike the plea of privilege was orally made in open court of material consequence, there being no suggestion nor implication whatever that such circumstance was either objected to at the time, or that it brought about an improper result; it was, therefore, waived. Rule 434, Texas Rules of Civil Procedure; Traders & General Ins. Co. v. Collins, Tex.Civ.App., 179 S.W.2d 525; Denbow v. Standard Acc. Ins. Co., Tex.Sup., 186 S.W.2d 236.

Clearly, from the facts stated—the original defendants here having been sued jointly and severally—this was not a situation where necessary parties were involved, hence Subdivision 29a, of R.S. Article 1995, Vernon's Ann.Civ.St. art. 1995, subd. 29a, was not involved.

On the merits, the trial court submitted —in some 34 special issues—what it regarded as the controlling questions of fact raised by both the pleadings and the evidence; indeed, it went further and literally cross-examined the jury by submitting the detailed inquiries from both sides embodying their theories of the case—all the requested issues by the appellants on the points they now make on the appeal having been given by the court in the form they requested them in.

In so doing, the trial court not only followed the admonition of the Supreme Court in Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931, in prefacing its inquiries with the accepted definitions of "negligence," "proximate cause," "new and independent cause," "ordinary care," and "preponderance of the evidence," but required the jury to further determine whether each act found to be negligent also was a proximate cause of the accident.

The court followed such system in submitting the twofold cause of action on which the appellee sued—that is, his damages for personal injuries and his damages from diminished market value of his car before and after the collision, in accord with the rule...