Motsenbocker v. Wyatt

• Decision Date: 26 June 1963
• Docket Number: No. A-9288,A-9288
• Citation: 369 S.W.2d 319
• Parties: Donald M. MOTSENBOCKER, Petitioner, v. James W. WYATT, Respondent.
• Court: Texas Supreme Court

Page 319

369 S.W.2d 319

Donald M. MOTSENBOCKER, Petitioner, v. James W. WYATT, Respondent.

No. A-9288.

Supreme Court of Texas.

June 26, 1963.

Rehearing Denied July 24, 1963.

Thompson, Knight, Wright & Simmons, John A. Gilliam and Timothy E. Kelley, Dallas, for petitioner.

Bowyer, Thomas, Crozier & Harris, Wm. W. Sweet, Jr., Dallas, for respondent.

NORVELL, Justice.

Gloria Ann Wyatt, a five-and-a-half-year-old child was injured when she attempted to get out of a moving automobile, and fell under the wheels of the car as it rolled down a slight incline. James W. Wyatt, the father of Gloria Ann, acting in his individual capacity and as next friend of his daughter, sued Donald M. Motsenbocker, the owner of the automobile for damages. The trial court rendered judgment, based upon the jury's contributory negligence findings, that James W. Wyatt individually take nothing against Motsenbocker. As next friend, Wyatt was awarded a judgment of $250,00 on behalf of his daughter.

The Court of Civil Appeals held as a matter of law that the negligence of Wyatt (if such negligence be assumed to exist) was not a proximate cause of Gloria Ann's injuries. Having thus exonerated Wyatt of contributory negligence, the court rendered judgment in favor of Wyatt individually and against Motsenbocker for $3,719.00.

Motsenbocker filed certain cross-points in the Court of Civil Appeals. That court sustained a motion by filed by Wyatt, styled 'Motion to Dismiss Appeal of Donald W. Motsenbocker,' and held that Motsenbocker's cross-points could not be considered. See Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543.

In our opinion the Court of Civil Appeals erred in holding as a matter of law that Wyatt was not guilty of contributory negligence. Ordinarily, this would call for a reversal of the judgment of the Court of Civil Appeals, and an affirmance of the judgment of the trial court. However, there is a point in Wyatt's brief in the Court of Civil Appeals which asserts that the evidence was 'insufficient' to sustain the jury's answers to Special Issues 8-A, 8-B, and 8-C, relating to the alleged contributory negligence of Wyatt. We construe this point as invoking the fact jurisdiction of the Court of Civil Appeals to set aside such findings upon the theory that the jury's answers were against the overwhelming preponderance of the evidence. King v. King, 150 Tex. 662, 244 S.W.2d 660; Garwood, 'The Question of Insufficient Evidence on Appeal,' 30 Tex.Law Rev. 803; Calvert, "No Evidence' and 'Insufficient Evidence' Points of Error,' 38 Tex.Law Rev. 361. For reasons hereinafter mentioned, we do not believe this cause is controlled by Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, and accordingly, this cause will be remanded to the Court of Civil Appeals for further consideration.

We are also of the opinion that the Court of Civil Appeals erred in dismissing Motsenbocker's cross-points contained in his brief filed in such court. After a remand, the Court of Civil Appeals should consider these cross-points should they become material in deciding whether the district court's judgment should be reversed.

No appeal was taken from that portion of the judgment awarding $250.00 for the benefit of the injured child so that we need not consider this feature of the case. That portion of the trial court's judgment remains undisturbed.

As bearing upon the contributory negligence defense asserted by Motsenbocker to Wyatt's individual claim, the jury found that (8-A) Wyatt permitted Gloria Ann to be absent from her home without parental supervision for approximately one hour; that (8-B) such action on the part of Wyatt was negligence; and (8-C) a proximate cause of Gloria Ann's injuries.

The petitioner here does not complain of the Court of Civil Appeals' statement of the facts of the case which is believed to be substantially correct. That court expressly stated that it did not decide the 'issue of basic negligence' of Wyatt, but held that there was no evidence that leaving the child unattended for period of one hour was the proximate cause of her injuries.

In our opinion, there was some evidence to support the jury's finding that Wyatt and his wife were negligent under the 'person of ordinary prudence' standard in allowing Gloria Ann and her younger brother to cross the street to play with a neighbor's child and then leaving the child unattended for approximately an hour's time without ascertaining whether or not the children actually remained on the neighbor's premises or wandered into an area where they might encounter danger. Small children when unattended are apt to get into trouble. They often disobey instructions and find themselves in positions of danger wherein because of their tender years and lack of experience they cannot protect themselves. Admittedly, the actions of Mrs. Wyatt in allowing her children to cross the street to play with a neighbor's children and then becoming preoccupied with preparing the family dinner and failing to make inquiry as to their welfare and whereabouts cannot be characterized as a particularly blameworthy type of conduct. Yet, if parents do not look after their children and protect them from danger, that obligation or moral duty devolves upon those members of the public generally who perchance may encounter these unsupervised children and realize that potential harm may come to them. We need not fully restate the facts as given in the opinion of the Court of Civil Appeals other than to say that after the Wyatt family returned from Sunday School, Gloria Ann expressed a desire to go to a public park to play. This park or playground was some two blocks distant from the Wyatt residence. The mother refused this requested permission but did allow Gloria Ann to cross the street and play with Cindy Nettles, a neighbor's child, with instructions to return home when Cindy went in to eat her dinner. No subsequent inquiry was made to ascertain if these instructions were being obeyed. In fact, they were disobeyed. Gloria Ann and her brother went to the park or playground and there met Mr. Motsenbocker and his young son who were engaged in flying a kite. About noon, Mr. Motsenbocker undertook to return the unsupervised Wyatt children to their home, and it was during the course of this undertaking that Gloria Ann was injured

It is pointed out in the opinion of the Court of Civil Appeals that the question of negligence as well as that of proximate cause relating to supervision or lack of supervision by parents over minor children have been considered and determined by various courts with somewhat diversity in holdings. This is necessarily so because of the various factual circumstances presented in each case. ¹

Perhaps as good a statement of the rule applicable to this class of cases as will be found in that made by Mr. Justice Williams (afterwards a member of this Court) speaking for the Galveston Court of Civil Appeals in Houston City Street Railway Co. v. Dillon, 3 Tex.Civ.App. 303, 22 S.W. 1066, no wr. hist., when he said:

'Negligence on the part of the parent must consist, in such matters, of neglect of the duty which every father and mother owe to their child, of exercising over it such protective care as its age, capacity, and the danger to which it may be exposed render reasonably necessary; and it is to be borne in mind that this is not the only duty which rests upon heads of families, but is only one among many, and its performance is to be exacted with due regard to their abilities, and to other demands upon their attention. The degree of care to be used must always be measured by the circumstances of the case. Care which would be adequate in some situations would be wholly inadequate in others. It is therefore a question peculiarly fit for the determination of a jury of ordinary men, in cases where there is not an entire abnegation of the duty which rests upon the parent, but an attempt to perform it, whether or not caution displayed was a discharge of the duty growing out of, and demanded by, the circumstances.'

Applying the rule stated to the facts of this case, we hold that there is some evidence supporting the jury's finding that the parents were negligent under the test of the ordinary prudent person. We here again note that a discussion on this point was pretermitted by the Court of Civil Appeals, and hence it cannot be said that it passed upon the point which asserted that the jury's finding of negligence was not supported by sufficient evidence or was against the overwhelming preponderance of the evidence.

As above noted, the Court of Civil Appeals held as a matter of law that Wyatt's negligence (which for the purposes of argument the court assumed) was not a proximate cause of Gloria Ann's injuries. Under the Texas special issue practice, the issue of foreseeability is contained in the definition of proximate cause. City of Dallas v. Maxwell, Tex.Comm.App., 248 S.W. 667, holding approved by the Supreme Court, Kuemmel v. Vradenburg, Tex.Civ.App., 239 S.W.2d 869, wr. ref., n. r. e. For a result to be legally foreseeable, however, it is not 'required that the particular accident complained of should have been foreseen. All that is required is 'that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Carey v. Pure Distributing Corporation, 133 Tex. 31, 124 S.W.2d 847.

The case cited presented an unusual factual situation and this Court held that while the driver of the Pure truck could have foreseen some injury similar to that which occurred to Carey, he could not be charged with the ability to foresee an injury similar to that sustained by Carey's wife, that is, a miscarriage caused by fright and emotional disturbance experienced by her upon seeing her husband injured....