Luvual v. Henke & Pillot, Division of Kroger Co.

• Decision Date: 31 January 1963
• Docket Number: No. 13924,13924
• Citation: 366 S.W.2d 831
• Parties: J. W. LUVUAL et ux., Appellants, v. HENKE & PILLOT, DIVISION OF the KROGER COMPANY, et al., Appellees.
• Court: Texas Court of Appeals

Page 831

366 S.W.2d 831

J. W. LUVUAL et ux., Appellants, v. HENKE & PILLOT, DIVISION OF the KROGER COMPANY, et al., Appellees.

No. 13924.

Court of Civil Appeals of Texas, Houston.

Jan. 31, 1963.

Rehearing Denied March 28, 1963.

Second Rehearing Denied April 18, 1963.

Carl Waldman, Ernest L. Sample, Beaumont, for appellants.

Keith, Mehaffy, McNicholas & Weber, Beaumont, James W. Mehaffy, Dewey J. Gonsoulin, Beaumont, of counsel, for appellee.

BELI, Chief Justice.

Appellant, J. W. Luvual, sued appellee to recover damages that resulted from injuries received by his wife, Ann, when an automobile in which she was riding was in collision with a truck belonging to Henke & Pillot which was beling driven by Kinsey Whitfield, an agent of Henke & Pillot. Trial was to a jury and based on the jury verdict the court rendered judgment that plaintiff take nothing.

Appellant's theory of recovery against Henke & Pillot was that Kinsey Whitfield as its agent, acting in the course and scope of his employment, was negligent and his negligence was a proximate cause of the collision. Another theory of recovery was that Henke & Pillot was negligent in entrusting its truck to Whitfield who was an incompetent driver, which fact was known to it or could have been known in the exercise of reasonable diligence. This latter theory was not submitted to the jury because Henke & Pillot had judicially admitted that Whitfield at the time of the accident was its employee and was acting in the course and scope of his employment.

The court in its main charge before the submission of the special issues defined certain legal terms, two of which we will notice. He defined the term 'proper control' as meaning 'that control exercised by a person of ordinary prudence, in the exercise of ordinary care, under the same or similar circumstances.' He defined 'excessive speed' as 'a greater rate of speed than that at which a person of ordinary prudence in the exercise of ordinary care would have operated a vehicle under the same or similar circumstances.' 'Ordinary' and 'negligence' were defined in the usual manner. The court then submitted special issues inquiring as to alleged acts of negligence on the part of Whitfield. There was no contention that any contributory negligence existed. We need notice only the following issues and the jury's answers to them:

Special Issue No. 3 inquired as to whether Whitfield, as he approached the intersection in question and immediately prior to the collision, was driving his truck at an 'excessive rate of speed.' The jury answered, 'We do.'

Special Issue No. 4 inquired if the jury found his driving at an excessive rate of speed was negligence. The jury answered, 'We do not.' Special Issue No. 5 was predicated on a 'We do' answer to Special Issue No. 3 and inquired if such negligence was a proximate cause of the collision. The jury answered, 'We do not.' Special Issue No. 6 inquired whether immediately prior to the collision Whitfield failed to keep the truck under 'proper control.' The jury answered, 'We do.' Special Issue No. 7 asked whether such failure was negligence and the jury answered 'We do not.' Special Issue No. 8 was predicated on a 'We do' answer to Special Issue No. 6 and inquired as to whether the jury found the failure to keep the truck under proper control was a proximate cause of the collision and the jury answered 'We do not.' Special Issue No. 9 inquired as to whether the jury found Whitfield, immediately before the collision, was driving in excess of 30 miles per hour. The jury answered 'We do.' By its answer to Special Issue No. 10 the jury found such was negligence, but in answer to Special Issue No. 11 found such was not a proximate cause of the collision. In answer to Special Issue No. 15 the jury found the collision was the result of an unavoidable accident.

Appellant here takes the position that the jury found the defendant Whitfield guilty of negligence in driving at an excessive rate of speed, in driving at a speed in excess of 30 miles per hour, and in failing to keep the truck under proper control, and that while the jury found that none of these acts was a proximate cause of the collision, each act was, as a matter of law, a proximate cause of the collision. He also takes the position that unavoidable accident was not raised by the evidence.

The collision in question occurred July 2, 1960, in Chambers County, at the intersection of State Highways 124 and 73. At this point Highway 73 runs in a southwesterly direction. Highway 124 runs in approximately an east-west direction at this point. At that time Highway 73 ran from Pt. Arthur west and ended at Highway 124. The truck owned by Henke & Pillot and driven by its employee Whitfield was coming from Pt. Arthur to Houston. When Whitfield reached the intersection it would be necessary for him to turn left on Highway 124 to proceed to Houston. Actually Highway 73 runs approximately southwest but about 100 feet before it intersects Highway 124 it curves toward the north, so that the intersection with Highway 124 is almost at a right angle. At the intersection there is a stop sign controlling traffic on Highway 73 as it comes into Highway 124. Approximately 300 feet easterly from the intersection there is on Highway 73 a slightly raised 4 foot wide concrete median that runs to a point about 60 feet from the intersection. At a point about 80 feet from its southwesterly terminus the esplanade or median begins to curve to the right as one is coming from Pt. Arthur as was Whitfield.

We need not detail the various warning signs and speed signs. It suffices to say that Whitfield was well acquainted with the signs and the intersection. Also the collision occurred about 11 o'clock in the morning and under the testimony Whitfield was exceeding the 30 mile speed limit.

There were no witnesses to the accident who could relate material facts concerning what led up to the collision, other than Whitfield. A highway patrolman who investigated the accident gave evidence of what he found on the ground, but his testimony sheds little light on the problem before us, except as we shall hereafter notice.

Whitfield testified he was proceeding from Pt. Arthur to Houston. He had a rash on his right foot that he referred to as 'Pacific Rot' because he got it while serving with the armed forces in the Pacific Theatre of operations. Because of this he had cut the top part of the shoe from the lower part of the place where the shoe laces begin so that below that point his foot was exposed and there was only the sole of the shoe remaining below the laces. About 200 feet before he got to the stop sign he was driving at 35 or 36 miles per hour. He had been going about 45 miles an hour but had slowed down. At the 200 foot point he thought the truck would not reach intersection so he placed his foot lightly on the accelerator to 'goose' the speed up. He said he barely increased the speed. At a point about 150 feet from the stop sign he attempted to lift his foot from the accelerator and found it was caught on the sole of his shoe. He had been using this shoe in this condition for some time and had had no trouble with it. As he attempted to 'snatch' it loose, the truck hit the esplanade and he lost control of the truck. The truck jumped the esplanade and went over to the left side of the Highway 73 and on across Highway 124. The truck jumped the esplanade about 3 or 4 feet from the end of it and 20 or 25 feet from the stop sign. He kept trying to got control of his truck because he was on the wrong side of the road and he knew he might have a head-on collision. He was unable to get control. He knew about the stop sign. He was going to turn left on Highway 124 to go to Houston. He could not make the turn at 30 miles per hour without turning over. At the speed he was going, had he not lost control of the truck, he could have stopped at the stop sign. There is no evidence he could not have done so. The tachometer showed the speed to have been 45 miles per hour at a time before the accident, but Whitfield testified he had complained to his employers that it was working incorrectly. Too, Officer Manning said he could not say what the last reading on the tachometer was immediately before the accident, because he didn't remember. He looked at it at the scene of the accident. Whitfield said someone told him it showed 45 miles per hour. A copy of the tachometer in evidence shows 45 miles per hour and then an abrupt drop to zero. Mr. Manning, the investigating officer, testified the fact that the tachometer showed 45 miles per hour and then an abrupt drop to zero would not, because of the short time interval, necessarily mean the driver was not slowing to 30 miles per hour as he testified.

As the truck went across Highway 124 it was hit by the automobile occupied by Mrs. Luvual.

Appellant filed his motion asking the court to render judgment notwithstanding the verdict. The position taken was that the jury's finding that Whitfield's negligence in driving at an excessive rate of speed, at a speed in excess of 30 miles per hour, and in failing to keep the truck under proper control, were not a proximate cause of the collision, had no support in the evidence, but to the contrary, as a matter of law, each was a proximate cause. Too, he contended there was no evidence to support the finding of unavoidable accident and the issue should not have been submitted. Also, on motion for new trial, the position taken was that such answers were contrary to the overwhelming weight and preponderance of the evidence.

In determining whether the trial court should disregard the jury's answers to certain issues and then render judgment in favor of the movant, it must appear there is no evidence of probative value supporting the jury's answers. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. We must view the evidence most favorable to the party against whom such judgment is sought. Texas...