Members Mut. Ins. Co. v. Muckelroy

• Decision Date: 27 February 1975
• Docket Number: No. 16439,16439
• Parties: MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Anexial MUCKELROY et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 77

523 S.W.2d 77

MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Anexial MUCKELROY et al., Appellees.

No. 16439.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Feb. 27, 1975.

Rehearing Denied April 3, 1975.

Second Rehearing Denied May 1, 1975.

Gordon A. Holloway, John Palmer Hutcheson, Houston (Sewell, Junell & Riggs, Houston, of counsel), for appellant .

Miller, Gann & Perdue, Gerald H. Buttrill, Houston, for appellees.

EVANS, Justice.

We are here concerned with the construction of revised Rule 277, Texas Rules of Civil Procedure, which became effective September 1, 1973.

This suit resulted from an intersection collision between the vehicle of Jasper and Anexial Muckelroy and a vehicle operated by Verdie Webber, an uninsured motorist. The Muckelroys were in a funeral procession proceeding north on Lockwood Street in the righthand lane. Verdie Webber was proceeding south on Lockwood in the inside lane, intending to make a left turn onto Cavalcade Street . As she proceeded to make the lefthand turn, her vehicle was struck by the Muckelroy vehicle. After a jury trial, judgment was entered for the Muckelroys against Verdie Webber and Members Mutual Insurance Company for the aggregate amount of $4,962.50 plus interest. The issues and explanatory instructions submitted to the jury, and its responses, were as follows:

'By the term 'negligence,' as used in this charge is meant a failure to do that which a person of ordinary prudence, in the exercise of ordinary care, would do under the same or similar circumstances, or the doing of that which a person of ordinary prudence, in the exercise of ordinary care, would not do under the same or similar circumstances.

'By the term 'ordinary care' is meant that degree of care which would be exercised by a person of ordinary care and prudence under the same or similar circumstances.

'By the term 'proximate cause', as used in this charge, is meant a cause which in a natural and continuous sequence, produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary care, and prudence, in the exercise or ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.

'By the term 'preponderance of the evidence' as used in this Charge is meant the greater weight and degree of credible evidence before you.

SPECIAL ISSUE NO. 1.

'Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision made the basis of this suit?

'ANSWER: (a) The defendant, Verdie Webber.

(b) The plaintiff, Jasper Muckelroy.

(c) Both.

'(a)'

SPECIAL ISSUE NO. 2.

'Do you find from a preponderance of the evidence that on the occasion in question Verdie Webber failed to yield the right-of-way to the automobile driven by Jasper Muckelroy?

'You are instructed that the driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.

'ANSWER: 'We do' or 'We do not.'

'We do.'

If you have answered Special Issue No. 2 'We do,' and only in that event, then answer:

SPECIAL ISSUE NO. 3.

'Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question?

'ANSWER: 'We do' or 'We do not.'

'We do.'

SPECIAL ISSUE NO. 4.

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate ANEXIAL MUCKELROY and her husband, JASPER J. MUCKELROY, for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?

'You will consider the following elements of damages, if any, and none other:

'a. Physical pain and mental anguish which she has suffered in the past.

'b. Physical pain and mental anguish which, in reasonable probability, she will suffer in the future.

'c. Loss of her earnings in the past.

'd. Loss of earning capacity which, in reasonable probability, she will sustain in the future.

'e. Loss of her household services in the past.

'f. Loss of her capacity to perform household services which, in reasonable probability, will be sustained in the future.

'g. The reasonable expenses, if any, for necessary medical care received by ANEXIAL MUCKELROY in the past for treatment of her injuries resulting from the occurrence in question.

'5000.00 for A thru G'

In its first three points of error Members Mutual complains that the trial court erred in submitting Special Issue No. 1 over objection that there were no pleadings sufficient to warrant its submission; that such issue failed to limit the jury to a consideration of the specific acts of negligence alleged (i.e., failure to keep proper lookout and make timely application of brakes) and that the form of the issue constituted a general charge.

Under Rule 277, the trial court is authorized to submit a case on special issues without request of either party or if a party requests, the court is required to submit on special issues. An exception to this requirement, not applicable here, is that 'for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge.'

The rule provides that special issue submission shall be of those 'issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case.' The question is negligence is a 'controlling issue' is this case.

The rule further provides that it 'shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly.' In the case before us the trial court elected to make a broad form of submission and we are of the opinion this was authorized by the rule.

The fourth paragraph of Rule 277 provides:

'The court may submit special issues in a negligence case in a manner that allows a listing of the claimed acts or omissions of any party to an accident, event, or occurrence that are raised by the pleadings and the evidence with appropriate spaces for answers as to each act or omission which is listed. The court may submit a single question, which may be conditioned upon an answer that an act or omission occurred, inquiring whether a party was negligent, with a listing of the several acts or omissions corresponding to those listed in the preceding question and with appropriate spaces for each answer. Conditioned upon an affirmative finding of negligence as to one or more acts or omissions, a further question may inquire whether the corresponding specific acts or omissions (listing them) inquired about in the preceding questions were proximate causes of the accident, event, or occurrence that is the basis of the suit. Similar forms of questions may be used in other cases.'

As we understand this provision, considered in the light of other language in the rule, the trial court 'may submit' issues in a negligence case in a manner which allows a listing of the claimed acts or omissions so that the issue itself tends to limit the jury's consideration to those particular 'claimed acts or omissions', but the trial court is not required to adopt this form of submission. The argument of Members Mutual is that unless the form of submission limits the jury in its consideration to those specific acts or omissions of negligence alleged, the jury is without guidance as to the elements which it may properly consider in its deliberations and its verdict may be founded upon varying convictions of individual jurors as to different acts or omissions. This argument has logic and prior to the revision of Rule 277, formed the basis for the requirement that separate inquiries be submitted regarding each specific act of negligence alleged. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Barclay v. C. C. Pitts Land & Gravel Co., 387 S.W.2d 644 (Tex.1965). However, we believe the intent manifested by the revision of Rule 277 is that the trial court shall have greater discretion in the form of submission in negligence cases, and that the rule abolishes the requirement of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517, that issues be submitted 'distinctly and separately.' Shasteen v. Mid Continent...