Ozuna v. Dyer Fruit Box Mfg. Co.

• Decision Date: 04 September 1980
• Docket Number: No. 1354,1354
• Citation: 606 S.W.2d 334
• Parties: Victor OZUNA (and Olivia O. Perales, Individually and as Next Friend of Her Minor Son, Victor Perales), Appellants, v. DYER FRUIT BOX MANUFACTURING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 334

606 S.W.2d 334

Victor OZUNA (and Olivia O. Perales, Individually and as Next Friend of Her Minor Son, Victor Perales), Appellants, v. DYER FRUIT BOX MANUFACTURING COMPANY, Appellee.

No. 1354.

Court of Civil Appeals of Texas, Tyler.

Sept. 4, 1980.

Raul Garcia, Alice, for appellants.

Paul N. Davis, Jorge C. Rangel, Corpus Christi, for appellee.

SUMMERS, Chief Justice.

This is an action arising out of a collision between two trucks at a highway intersection.

Appellee Dyer Fruit Box Manufacturing Company (Dyer) as plaintiff sued appellant Victor Ozuna for damages to its truck allegedly caused by Ozuna's negligence in driving out from a stop sign into the path of Dyer's truck which had the right of way. Ozuna was driving his truck accompanied by his grandson, Victor Perales. Olivia O. Perales, individually and as next friend for her minor son, Victor Perales, intervened and along with defendant Ozuna counterclaimed against Dyer for personal injuries to Victor Perales and Victor Ozuna, together with damages to Ozuna's truck.

The collision between the two trucks occurred at approximately 7:10 p. m. on December 11, 1977, at the intersection of U. S. Highway 281 and Farm Road 716 near Premont, about 18 miles south of Alice, Texas.

In response to special issues the jury found that Ozuna was negligent in failing to keep a proper lookout (S/I 1), failing to yield to oncoming traffic having right of way (S/I 3) and failing to properly apply brakes (S/I 5). The jury further found that each of these acts of negligence proximately caused the collision in question (S/I 2, 4, 6). The jury found that Dyer's driver, Ted Sample, did not fail to keep a proper lookout (S/I 7) and was not driving at a greater rate of speed than a person using ordinary care would have driven (S/I 9). Although the jury found that Dyer's driver failed to properly apply his brakes (S/I 11), they further found that such failure was not a proximate cause of the collision (S/I 12). Damages to Dyer's truck were stipulated.

On the basis of these findings, the trial court rendered judgment for appellee Dyer in the amount of the stipulated damages and that Ozuna and Intervenor Perales recover nothing.

From this adverse judgment, appellants Ozuna and Perales have appealed.

We affirm.

In the index of their brief appellants refer to their single and first point of error as being on page 3 and immediately following that reference set forth the following statement in the index:

"The Trial Court erred in excluding photographs of the accident scene to show that the investigating officers (sic) reconstruction of the accident was erroneous."

The failure of appellants to brief and argue the above statement alleging error in the exclusion of photographs constituted a waiver of this complaint. It is well settled that points of error are required to be supported by argument and authorities, Tex.R.Civ.P. Rule 418(e), and if not so supported, the points are waived. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, 360 (1944); Nolan v. Bettis, 577 S.W.2d 551, 556 (Tex.Civ.App.-Austin 1979, ref'd n. r. e.); Security Federal S. & L. Assn. v. DeWitt, 536 S.W.2d 262, 265 (Tex.Civ.App.-Amarillo 1976, writ ref'd n. r. e.); Phagan v. State, 510 S.W.2d 655, 659 (Tex.Civ.App.-Fort Worth 1974, writ ref'd n. r. e.); 5 Tex.Jur.3d Appellate Review § 477 (1980).

Thereafter, at page 3 in the body of appellant's brief, the first and only point of error is set forth as follows:

"The jurys (sic) answers to Special Issues Numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16 and 17 are so against the overwhelming weight and degree of the evidence as to be manifestly unjust and wrong and said findings resulted in the rendition of an improper judgment."

We agree with appellee that the foregoing point of error in multifarious. A point of error is multifarious if it embraces more than one specific ground of error, or if it attacks several distinct and separate rulings of the trial court. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n. r. e.); Kroger v. Cellan, 560 S.W.2d 505, 507 (Tex.Civ.App.-Tyler 1977, writ ref'd n. r. e.); City of Houston v. Jean, 517 S.W.2d 596, 598 (Tex.Civ.App.-Houston (1st Dist.) 1974, writ ref'd n. r. e.); 5 Tex.Jur.3d Appellate Review § 473 (1980).

In disposing of this point, we apply the liberal rule with reference to the construction of points laid down in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943) and reaffirmed by the Supreme Court in O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976). The rule so established, simply stated, is that if a point is sufficient to direct the court's attention to the matter complained of, the court will "look to the 'point' and the statement and argument thereunder to determine the question of reversible error." Eoff v. Muskiet, 561 S.W.2d 542, 544 (Tex.Civ.App.-Beaumont 1977, writ ref'd n. r. e.); Nueces County Drainage & Con. Dist. No. 2 v. Bevly, 519 S.W.2d 938, 941 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n. r. e.).

Immediately prior to the collision in question, Ted Sample, appellee's driver, was driving a Mack tractor-trailer south on U. S. Highway 281 and appellant Ozuna, accompanied by his grandson, Victor Perales, was driving west in his Chevrolet winch truck on Farm Road 716. Ozuna was proceeding to the scene of another accident that occurred shortly before on U. S. Highway 281 about 50 feet north of the intersection with Farm Road 716. Ozuna testified that the prior accident involved two of his close friends; that as he approached the stop sign, which faced him at the intersection, he could see the vehicles involved in the prior accident and was primarily concerned with that accident; that he intended to cross the intersection and then back up along 281 to the scene of the prior accident; that after stopping at the stop sign, he proceeded across the intersection not seeing Dyer's tractor-trailer or any traffic there; that the first time he saw the truck was right at impact when "it was almost on top of me"; and that there was a police officer at the intersection who signaled him to cross the intersection. However, all other...