MacDonald v. Skinner, 5466

• Decision Date: 31 May 1961
• Docket Number: No. 5466,5466
• Parties: Annette MacDONALD, Inc. and as Next Friend, Appellant, v. Harry Owen SKINNER, Appellee.
• Court: Texas Court of Appeals

Page 950

347 S.W.2d 950

Annette MacDONALD, Inc. and as Next Friend, Appellant, v. Harry Owen SKINNER, Appellee.

No. 5466.

Court of Civil Appeals of Texas, El Paso.

May 31, 1961.

Rehearing Denied July 5, 1961.

Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellant.

Jack Pew, Jr., W. B. Patterson, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellee.

LANGDON, Chief Justice.

This suit was brought by appellant, Annette MacDonald, a widow, individually and as next friend of her minor daughter, Ann Edith MacDonald, for the death of Howard E. MacDonald, her husband, and the father of the minor child.

Howard E. MacDonald was killed when he was struck by an automobile driven by appellee, Harry Owen Skinner, as he was walking across Buckner Boulevard at its intersection with Tarleton Street, in the City of Dallas, on the evening of December 7, 1958. It was alleged that Skinner was guilty of negligence proximately causing the death of the deceased.

The case was tried before a jury. In answer to special issues, the jury found against appellee Skinner on the following numbered issues: (1-2), failure to keep a proper lookout, proximate cause in; (3-4-5), driving at excessive rate of speed; negligence and proximate cause; (8-9-10), failure to swerve to the right negligence and proximate cause; (11-12), speed greater than 35 miles per hour; proximate cause. In answer to other special issues, the jury found: (13-14), that deceased was crossing the boulevard in question at a cross-walk, and that appellee Skinner failed to yield the right of way to the deceased; (15), that deceased did not attempt to cross the street in question at a point other than an intersection; (20), that deceased did not attempt to cross the street in question at a point other than a cross-walk; (22), that deceased did not suddenly leave a place of safety; (27), that deceased did not attempt to cross a street at a point where there was not sufficient light to reveal his presence to automobile drivers on said street; but, in answering special issues (18-19), the jury found that the deceased 'failed to keep a proper lookout' and that such failure was a proximate cause of his injuries. Damages found by the jury for the minor child, occasioned by the loss of her father, $19,351.44, and for appellant, for the loss of her husband, $30,102.24.

Appellant's motion for judgment non obstante veredicto was overruled, and take-nothing judgment was rendered against appellant and in favor of appellee, based on the jury finding that the deceased failed to keep a proper lookout. Appellant's motion for new trial was likewise overruled.

Appellant's appeal is predicated upon seven points of error, which fall into two categories.

By Points 1 to 5, inclusive, it is contended that the trial court erred in overruling appellant's motion for judgment non obstante veredicto because there was no evidence to support the jury's affirmative answer to Special Issues Nos. 18 and 19, and because the evidence was insufficient to support the jury's affirmative answer to Special Issues Nos. 18 and 19. By Points 6 and 7, it is contended that the trial court erred in failing to grant a new trial on the ground of jury misconduct, and because of prejudicial error during the deliberation of the jury; it being charged that, after a majority of the jurors had voted that the deceased kept a proper lookout, it was overtly stated and discussed that affirmative answers to Special Issues 18 and 19, on the question of whether the deceased failed to keep a proper lookout, would not affect appellant's right to recover, the jury having thereafter answered such issues in the affirmative.

By counter-points, appellee contends that appellant's points of error may not be considered or reviewed by this court because some of the evidence introduced and considered on the trial of this cause is not in the appellante record now before this court. The record, appellee says, is therefore incomplete, and he contends that this court, in the absence of a complete record, cannot review appellant's points which question the sufficiency of the evidence to support the jury's findings, and the trial court's action in overruling appellant's motion for new trial based on alleged jury misconduct.

The omitted evidence, which is the basis for appellee's contention that the record is incomplete, consisted of a rough, freehand sketch of the intersection of Buckner Boulevard and Tarleton Street, drawn with chalk on a large blackboard (a regular fixture of the courtroom) by Edwin Tompkins, a witness for appellant. The sketch did not purport to be an accurate scale drawing of the accident scene. It was drawn for the purpose of affording a method or means by which the position of physical details and objects, testified about by the various witnesses, could be located with respect to the intersection in question. Various marks, symbols and lines were placed on the sketch, not only by the witness Tompkins, but by succeeding witnesses, as well as by the lawyers on both sides of the case.

The blackboard was offered in evidence by appellant and was admitted without objection. It does not appear, however, to have been marked for identification or assigned an exhibit number. For purposes of this opinion, we will assume that it was properly placed in evidence and was considered by the jury, along with other evidence admitted by the court during the course of trial.

When the blackboard sketch was offered in evidence by appellant, appellee stated '* * * it can't go into the record in this case except by photograph. Now, I have no objection to it and I promise I am not going to erase it.' No effort was made by appellant to photograph, or otherwise preserve, the sketch for the record in this case, until long after the trial of this cause, and by that time the blackboard, which was in every-day use in the courtroom, had been erased and the sketch destroyed.

When the sufficiency of the Statement of Facts was challenged by appellee by reason of the failure of appellant to preserve the blackboard sketch and to include it in the Statement of Facts, appellant filed a motion to amend or supplement the Statement of Facts, and attached to such motion a sketch drawn by the witness Tompkins, which purports to be a reproduction of the drawing made by the witness on the blackboard. Appellant's motion is based on Rule 428, Texas Rules of Civil Procedure, relating to the subject of how matters 'omitted' from the record may be supplied. Appellee contends that the diagram appellant introduced into evidence, and then failed to have preserved, could probably have been brought forward as 'omitted' evidence under Rule 428 while it was in existence, but that, since the diagram no longer exists, it is not omitted evidence, but 'destroyed' evidence, and the applicable rule is Rule 77, T.R.C.P., which permits lost or destroyed evidence to be supplied by order of the trial court made pursuant to sworn motion, after notice and hearing.

We believe appellee's objection to appellant's motion to amend or supplement the record in this case by ex parte affidavit must be sustained, since the method adopted by appellant does not conform to the requirements of either Rule 77 or Rule 428, T.R.C.P. Appellant's motion to amend or supplement the Statement of Facts is accordingly refused.

This brings us to a consideration of appellee's counterpoints, by which it is contended that the record before us, in the absence of the sketch, constitutes an incomplete record, thus precluding this court from considering appellant's points based on 'no evidence' and upon the 'insufficiency of the evidence', because some of the evidence is not before the court. For the same reasons, it is contended that an appellate court may not determine the question of 'probable harm' resulting from...