Mitchell v. Gooch

• Decision Date: 16 April 1948
• Docket Number: No. 2628.,2628.
• Citation: 210 S.W.2d 834
• Parties: MITCHELL v. GOOCH et al.
• Court: Texas Court of Appeals

Page 834

210 S.W.2d 834

MITCHELL v. GOOCH et al.

No. 2628.

Court of Civil Appeals of Texas. Eastland.

April 16, 1948.

Rehearing Denied May 7, 1948.

Appeal from District Court, Nolan County; A. S. Mauzey, Judge.

Action by Andy Gooch and others against O. C. Mitchell and Jack Lively for personal injuries sustained in an automobile collision. From the judgment, defendant Mitchell appeals.

Judgment against defendant Lively affirmed. Judgment in other respects reversed, and cause remanded.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellant.

Scarborough, Yates, Scarborough & Black, of Abilene, and Robertson, Jackson, Payne & Lancaster, of Dallas, for appellees.

GRISSOM, Chief Justice.

Andy Gooch was travelling west, on highway 80 east of Sweetwater, in an automobile driven by Jack Lively when the automobile collided with a truck owned by O. C. Mitchell which was headed west and alleged to have been stopped at night on the paved portion of the highway. Gooch was injured and sued both Mitchell and Lively for damages. He alleged that Lively was guilty of gross negligence and sought recovery against him under the guest statute, Vernon's Ann.Civ.St. art. 6701b. The cause was submitted to a jury and it found (1) that the Mitchell truck was stopped on the paved portion, or a part of the paved portion, of the highway at the time of the collision; (2) that stopping the Mitchell truck on the paved highway was negligence and (3) a proximate cause of the collision, and (4) that Gooch had suffered damages amounting to $5,000. The jury found (4-a) that the Mitchell truck had red or yellow lights burning that were visible under normal conditions for a distance of not less than 500 feet to the rear. It found (5) that Lively was not driving his car at an excessive rate of speed at the time of, or immediately preceding, the collision. Special Issues 10 and 11 and the jury's answers thereto were as follows:

(10) "Do you find from a preponderance of the evidence that the method and manner in which Jack Lively was driving and handling his car at the time of the collision in question was the sole proximate cause of the collision in question? Answer `Yes' or `No'. Answer: No."

(11) "Do you find from a preponderance of the evidence that the lights of the vehicles travelling east near the place of the collision in question were such as to constitute an efficient intervening cause of the collision in question? Answer `Yes' or `No'. Answer: No."

In connection with Issue 11, the jury was instructed as follows: "In answering the foregoing issue, you will be guided by the definition hereinabove given you as to the meaning of the term `efficient intervening cause'. You are further instructed that the term `efficient intervening cause' also means a new and independent cause and means the act or omission of a separate and independent agency which destroys the causal connection between the negligent act or omission, if any, of the defendant or defendant's agent and the injury, if any, complained of, and thereby becomes in itself the immediate cause of such injury."

The jury further found (12) that the collision was not the result of an unavoidable accident.

At the close of plaintiff's testimony, the court dismissed Lively from the suit over Mitchell's objection. Mitchell had pleaded in effect that in the event judgment was rendered against him, Mitchell was entitled to a judgment over against Lively for indemnity or contribution. Judgment was rendered on the verdict for Gooch against Mitchell and Mitchell has appealed.

Mitchell contends the court erred in placing the burden of proof on him in issues 10 and 11. Mitchell excepted to each of said issues because the burden of proof was placed on him when it should have been placed on plaintiff. The burden of proof was on the plaintiff and appellants' exceptions to said issues should have been sustained. Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790, 793.

Appellees contend that such action does not constitute reversible error, that is, that the error was harmless, because the jury found that Lively was not driving his car at an excessive rate of speed and that there was no evidence that Lively did or failed to do any other act that could have been the sole cause of the collision. Appellees further contend that because the jury found the collision was not the result of an unavoidable accident and Lively had been dismissed from the suit that anything Lively did or failed to do which could have contributed to the accident was embraced within the issue of unavoidable accident. Appellees also contend that appellant was not entitled to have issue 10 submitted in any form because it was included in issues relative to the speed at which Lively was driving and unavoidable accident. They cite Blaugrund v. Gish, 142 Tex. 379, 179 S.W. 2d 266, 269. In that case the defendant contended that the court erred in refusing to submit an issue as to whether or not plaintiff had his automobile under proper control. An issue as to whether or not the plaintiff was driving at an excessive rate of speed was submitted in relation to the circumstances of that case. The Court of Appeals, (179 S.W.2d 257, 266,) said: "We have read and reread the statement of facts and failed to discover any lack of control of plaintiff's vehicle other than in relation to speed. The manner of the collision does not, we think, justify an inference of lack of control on the part of plaintiff. Plaintiff's vehicle did not collide with the rear of defendant's truck. The truck, undisputedly, swerved into the pathway of plaintiff's vehicle."

That court further held that the requested issue was too general and indefinite; that it was not requested in proper form, and, therefore, it was not error to refuse it, but it also held that it was substantially submitted. The Supreme Court, on motion for rehearing, agreed with the Court of Civil Appeals and held that failure to submit the requested issue as to whether plaintiff had his automobile under proper control was not reversible error. It said : "If the issue of proper control on the part of Gish was in this case, the constituent element thereof was improper speed. The issue of speed was submitted to the jury, and found against Blaugrund. This point is overruled."

The point presented here is not that the court erred in refusing to submit an issue requested by appellant, in improper form, and an element of which was submitted. The point here is that the court erred in improperly placing the burden of proof on material issues submitted. That the burden of proof was improperly placed is not questioned. The real question is whether or not the contentions of the appellees, mentioned above, should prevent a reversal of the judgment. Appellees cite Dallas Railway & Terminal Co. v. Goss, Tex.Civ.App., 144 S.W.2d 591, 594, and quote therefrom the following: "The evidence, in our opinion, raises the issue of `unavoidable accident', as well as the issue of `sole proximate cause', but it does not follow that both issues should be submitted. If the evidence on a subsequent trial should be substantially the same as reflected by the record before us, we think it would be proper for the court to submit either of the issues named, but not both, as the defendant would not be entitled to slice two defenses from precisely the same facts. See Williams v. Rodocker, Tex. Civ.App., 84 S.W.2d 556, 558; Dallas Railway & Terminal Co., v. Little, Tex.Civ. App., 109 S.W.2d 289, 293."

In Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951, 952, Paul Holcomb was driving his automobile and his daughter was riding with him, under such circumstances that it was held they were not engaged in a joint enterprise but that the daughter was her father's guest, when there was a collision between the Holcomb automobile and a truck belonging to the Schuhmacher Company in which both Holcomb...