Magnolia Coca Cola Bottling Co. v. Jordan

• Decision Date: 25 February 1932
• Docket Number: No. 2630.,2630.
• Parties: MAGNOLIA COCA COLA BOTTLING CO. v. JORDAN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W.2d 901

MAGNOLIA COCA COLA BOTTLING CO. v. JORDAN et ux.^*

No. 2630.

Court of Civil Appeals of Texas. El Paso.

February 25, 1932.

Rehearing Denied March 24, 1932.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by H. P. Jordan and wife against the Magnolia Coca Cola Bottling Company. Judgment for plaintiff, and defendant appeals.

Reformed, and affirmed as reformed.

PELPHREY, C. J.

On May 26, 1930, the automobile of appellees, being driven in a southerly direction on Park street, by Mrs. Jordan, was damaged at or near the intersection of that street with Third street. Mrs. Jordan, who was then in a pregnant condition, was also injured. Later appellees filed this suit in the district court of El Paso county against appellant, and alleged in their petition that Ethel Jordan was driving the automobile in a southerly direction along the right-hand side of Park street; that appellant's agent was driving the truck in a westerly direction on Third street; that upon reaching the intersection of Third and Park streets he cut the corner, drove the truck in a southwesterly direction between the center of the intersection and the southeast corner of the block, striking the automobile with great force and violence, badly crushing her against the steering wheel and other parts of the car, bruising her stomach and back, causing her to give premature birth to twin babies, one of which was born badly bruised, and died from such injuries nineteen days after birth; that she was permanently injured thereby, still suffering pains in her back and head; her nervous system greatly damaged, had lost weight, was unable to sleep and her general health greatly impaired.

The specific acts of negligence alleged are: (1) That the truck was being driven at a rate of speed in excess of 20 miles per hour; (2) that the driver of the truck failed to yield the right of way; (3) that he failed to pass beyond the center of the intersection before turning to the left; (4) that he failed to give audible or visible signal of his intention to turn; and (5) that he failed to use ordinary care in an effort to stop.

Appellant answered by general demurrer, special exception, general denial, and specially denied the particulars of negligence alleged in appellee's petition; pleaded the contributory negligence of Ethel Jordan in failing to keep a proper lookout at the time of the accident; and that the driver of the truck at the time of the accident was not engaged in the performance of any duty or service for it or in the furtherance of its business, but was engaged upon a mission wholly his own, using the truck without the knowledge or consent of appellant.

In response to special issues, the jury found: (1) That the truck driven by appellant's employee approached the intersection of Third and Park streets, along Third street, and at or near such intersection collided with appellees' automobile; (2) that the driver of the truck did not approach the intersection going South on Park street; (3) that appellee's wife suffered the personal injuries complained of as a result of the collision; (4) that appellant's employee, at the time of the collision, was acting within the scope of his employment; (5) that the driver of the truck approached the intersection from the east on Third street and turned southerly on Park street without running beyond and to the right of the center of the intersection; (6) that the driver's negligence in so doing was a proximate cause of the injuries complained of; (7) that the truck was being operated at a speed in excess of twenty miles per hour; (8) that the negligence of the driver in so operating the truck was a proximate cause of the injuries complained of; (9) that the driver of the truck failed to keep a proper lookout; (10) that such failure was negligence and a proximate cause of the injuries; (11) that the car driven by appellee's wife was in or entering the intersection at the time the truck traveling west along Third street reached the easterly line of Park street; (12) that the truck failed to yield the right of way to the automobile; (13) that such failure was a proximate cause of the injuries; (14) that appellee's wife did not fail to keep a proper lookout; (15) that the driver of the truck was not acting solely in his own business in driving the truck at the time of the accident; (16) that the collision did not constitute an unavoidable accident; (17) that the sum of $5,000 would reasonably compensate appellee for the personal injuries suffered; (18) that an unborn son of appellee suffered injuries as a result of the collision, and died as a proximate result of such injuries; and (19) that the sum of $1,250 would reasonably compensate appellees for the pecuniary damages suffered by them by reason of the death of said minor son.

Judgment was awarded to appellees in the sum of $5,000 on the above findings. Appellant excepted to the judgment against it for the same amount, and appellees excepted to the court's refusal to render judgment in their favor for the $1,250 found by the jury to be their damages as a result of the death of their minor son.

Appellant's motion for a new trial was overruled, and it has perfected an appeal to this court.

* Writ of error granted.

Brown & Brooke, of El Paso, for appellant.

Lea, McGrady & Edwards, of El Paso, for appellees.

Opinion.

Appellant's first four propositions relate to the question of unavoidable accident. In the original charge the court submitted the issue thus:

"Question No. Seventeen: Do you find from the evidence that the collision in question constituted an unavoidable accident? Answer yes or no.

"By an `accident' or `unavoidable accident' is meant such an unexpected catastrophe as occurs without anyone being to blame for it; that is, in other words, being guilty of negligence in doing or permitting to be done or omitting to do the particular thing that caused such casualty."

In a supplemental charge the court gave the following instruction: "In connection with Question No. 17, you are charged that if you find from a preponderance of the evidence that said collision was an avoidable accident answer said question in the negative, but unless you so find answer same in the affirmative."

It appears from the record that, as originally drawn, there appeared between question No. 17 and the definition of unavoidable accident, the following charge: "Unless you find from a preponderance of the evidence that the collision complained of was not an unavoidable accident answer the foregoing question `yes,' but if you find from a preponderance of the evidence that same was not an unavoidable accident answer the same `no.'"

To the charge as originally drawn, appellant interposed the following objections: "To question No. 17 in which the court submits the question of unavoidable accident because it is not in proper form and for the reason the question as propounded in connection with the explanation and definition is confusing and misleading and imposes a higher burden upon the defendant than is imposed by law and imposes upon the defendant the burden of disproving unavoidable accident. It imposes the burden of proving by a preponderance of the evidence that the accident was avoidable, which is not the burden imposed by law. It does not properly define avoidable accident and unavoidable accident. It fails to take into consideration the issue of proximate cause in connection with the accident and in connection with unavoidable accident and fails to take into consideration new and independent cause. If the injuries were the result of matters not alleged in the pleadings and relied upon for a recovery, or if this accident and injury happened or was brought about without the negligence of any of the parties to the accident being a proximate cause thereof, there could be no recovery and the court in defining unavoidable accident fails to take into consideration and submit to the jury for its consideration those elements, and it fails properly to submit to the jury the converse of the proposition in connection with the instructions as given relative to how they should answer the question. It is further objected that question No. 17 contains no definition of avoidable accident and there is nowhere presented to the jury any rule by which they can answer question No. 17 correctly. The form of the question does not correctly impose the burden upon the plaintiff to establish that it was not an unavoidable accident."

After said objection was made the court struck out the above-quoted instruction as to how to answer question No. 17, and gave in lieu thereof supplemental charge No. 1.

Thereupon appellant renewed his objections, applying them also to supplemental charge No. 1.

Appellant's propositions are: (1) That the court erred in submitting the issue as he did, in that it "placed an undue burden on defendant and that the burden was upon plaintiffs to clear themselves of those elements which would prevent a recovery and therefore the burden was on plaintiffs to show by a preponderance of the evidence that the happening and injuries were not the result of or due to an unavoidable accident"; (2) that the court erred in failing to define "avoidable accident"; (3) that the court erred in improperly defining "unavoidable accident"; and (4) that the charge as given, taken together and considered as a whole, was misleading and confusing.

The definition of unavoidable accident as given is practically identical with that approved by the San Antonio Court of Civil Appeals in the case of Vesper et ux. v. Lavender, 149 S. W. 377, writ refused, and we do not find, from a search of the authorities, that the definition there approved has ever been changed.

The above definition appears to be in harmony with the holding of our Court of Civil Appeals in the case of Galveston, H. & S. A. R. Co. v. Gormley, 35 S. W. 488, in which the court used this language: ...