Otwell v. Scott, 7856

• Decision Date: 20 February 1968
• Docket Number: No. 7856,7856
• Citation: 425 S.W.2d 9
• Parties: Iman OTWELL and Carol Otwell, Appellants, v. C. S. SCOTT, d/b/a C. S. Scott Truck Lines et al., Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 9

425 S.W.2d 9

Iman OTWELL and Carol Otwell, Appellants, v. C. S. SCOTT, d/b/a C. S. Scott Truck Lines et al., Appellees.

No. 7856.

Court of Civil Appeals of Texas.

Texarkana.

Feb. 20, 1968.

Don Friedman, Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellants.

James Robert Hubbard, Wheeler, Watkins, Hubbard, Patton & Peek, Texarkana, for appellees.

CHADICK, Chief Justice.

This is a common law tort action arising out of a collision between two motor vehicles, a truck and a station wagon, meeting on an open highway. The jury answers to special issues acquitted the defendant truck driver and his employer of all negligent acts and omissions charged by the plaintiffs. The trial court entered a take nothing judgment and it is affirmed.

The plaintiffs in the trial court, appellants here, have briefed four points of error. The first two are grouped for argument. The statement and argument in support of the points divides appellants' complaint into three parts. First. Jury misconduct necessitating a reversal because the jury found there were three separate sole proximate causes of the injury in question, despite the trial judge's instruction that there could be but one sole proximate cause of such injury. Second. That after submitting a series of issues presenting the truck driver's sudden emergency doctrine defense, the trial judge over the objections of the plaintiffs submitted shades and variations of the same basic issue in two other separate special issues. Third. That submission of Special Issues 10, 11 and 12 embracing the sudden emergency defense and Special Issues 13, 14 and 15 tended to overly emphasize and give undue prominence to the defensive theory and the facts thereof constituting a defense to plaintiffs' cause of action.*

The appellants' first contention under points 1 and 2 is that answers to Special Issues 12, 13 and 15 evidenced a form of jury misconduct because the trial judge specifically instructed the jury that there can be but one sole proximate cause of injury and the jury misunderstood, overlooked or ignored the instruction and by it's answers found three separate sole proximate causes of the injury in suit. Although the answers of the jury might be characterized as jury misconduct, it does not appear to be of such a nature as to require a reversal when the entire record is examined. See Texas Rules of Civil Procedure, rule 327. The jury answers in this respect are not the basis of the judgment the trial court rendered. This is made apparent in the discussion of the next two phases of the appellants' complaint.

With reference to the second basis of reversal urged in appellants' statement and argument under the first two points, their objection to submission of Special Issues 13, 14 and 15 appear to have been well taken. Such issues are shades and variations of Issues 10, 11 and 12, embracing the sudden emergency defense. The excerpt from the defendants' answer next quoted clearly shows the relationship of the issues.

'B. That the sole proximate cause of the accident was the manner in which traffic immediately ahead of Billy Jeff Robins maneuvered and/or made a sudden reduction in speed.

'C. That the maneuvering and/or sudden reduction in speed on the part of traffic immediately ahead of Billy Jeff Robins caused him to be faced with a sudden emergency which called for immediate action on his part with no time for deliberation. That after the emergency arose, Billy Jeff Robins did what an ordinarily prudent person would have done under the same or similar circumstances.'

The very facts inquired about in Special Issues 13 and 14 are the same facts the appellees, as defendants, pled to raise the defense of sudden emergency which was submitted in Special Issues 10 and 11. However, because of the jury's verdict on other facts in the case, that is to say, because the jury found no issues of primary negligence against the defendants, under Tex.R.Civ.P. 434 the error does not necessitate a reversal, unless for the reasons next to be discussed in considering the third phase of the appellants' complaint.

Phase three complains of undue emphasis of the defensive theory and the facts inquired about in Special Issues 10 through 15. Undoubtedly, in slightly different language, the factual substructure of a single theory of defense was submitted in different ways. Such repetition was erroneous. Lone Star Gas Co. v . Ballard, Tex.Civ.App., 138 S.W.2d 633 (Fort Worth 1940 writ ref'd); Attaway v. Fort Worth and Denver Railway Co., Tex.Civ.App., 334 S.W.2d 845 (Forth Worth 1960, writ ref'd n.r.e.); 57 Tex.Jur.2d Trials Section 488 (1964). However, repetition in the submission of issues is not necessarily reversible error. 4 Tex.Jur. Appeal in Error--Civil Section 954 (1959). Hodges, Special Issue Submission in Texas 133 (1959). The following quotation from Attaway v. Fort Worth and Denver Railway Co., supra, where a similar question was considered is adopted as aptly stating the solution to the last problem presented by points of error 1 and 2.

'When a plaintiff in a suit for damages has not been able to obtain any jury findings upon which a judgment in his behalf for damages in some amount could be entered, and where the special issues submitting said plaintiff's theory of the case and upon which any recovery would necessarily be founded were placed in the charge ahead of issues, if any, which submitted his opponent's defensive theory, it would be difficult, if not impossible, to demonstrate the existence of reversible error under the provisions of Texas Rules of Civil Procedure 434 because the defensive issues were unduly emphasized to the prejudice of the plaintiff. Such difficulty would be enhanced when there is not entrinsic evidence demonstrating that by reason thereof some juror was induced to return a verdict other than that which he would have returned but for the nature of the charge.'

The record in this appeal contains nothing from which harm to the plaintiffs due to over emphasis may be inferred. The points are overruled.

Next for consideration is appellants' third point of error.

'POINT 3: The jury verdict and the judgment of the Court should be set aside for the same are grossly inequitable, unjust, and unfair under the evidence presented in such cause. The Court should grant a new trial under the powers of Rule 326, Rules of Civil Procedure, because of the insufficiency and weight of the evidence being contrary to the verdict and the judgment. (Germane to Assignment of Error Nos. 2, 4, 16, 24 and 29).'

The point, as written, requires this Court to examine all evidence in the record as it bears upon all unfavorable jury responses to the plaintiffs' special issues, as well as to all favorable responses to the defendants' issue. Technically, the broad sweep of the point is objectionable, but, with it, as with the two prior points of error, this Court has not stood on the formalities of briefing.

An examination of all evidence has been made in conformity with the guide line of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1961). The poignant story of tragedy, the untimely death of an innocent 12 year old child--a dainty little girl riding in a funeral procession, is found. A reader is filled with sympathy and confounded at the thought that such calamitous occurrences are the inescapable toll of modern highway transportation, if they are. Surely not, such havoc on the highway must be preventable. However, the parties charged by the aggrieved with negligently causing the fatal collision and those making the charge were before the jury unhindered in presenting their proof. The jury considered the evidentiary facts and found testimony satisfactory to it to support its verdict on the numerous fact issues. This Court has not been shown nor can it point to evidence or circumstances that demonstrate that the jury's verdict was against the overwhelming weight and preponderance of the evidence on the numerous issues supporting the judgment rendered. Appellants' point three must be overruled.

The following excerpt from the appellants' brief explains the position of the appellees with reference to the trial judge's exclusion of...