Parker v. Seligman & Latz, Inc.

• Decision Date: 08 May 1968
• Docket Number: No. 78,78
• Citation: 429 S.W.2d 159
• Parties: Violet L. PARKER et vir, Appellants, v. SELIGMAN & LATZ, INC., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 159

429 S.W.2d 159

Violet L. PARKER et vir, Appellants, v. SELIGMAN & LATZ, INC., Appellees.

No. 78.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

May 8, 1968.

Rehearing Denied June 5, 1968.

David C. DuBose, Houston, for appellants.

Alice Giessel, Henry Giessel, Houston, for appellee.

SAM D. JOHNSON, Justice.

Violet L. Parker and her husband, filed this suit against Seligman & Latz, Inc., for personal injuries suffered by Mrs. Parker in the allegedly improper administration of a permanent wave by an employee of Seligman & Latz. The permanent wave was given by Mr. Garcia, the operator-employee of Seligman & Latz, and it was alleged that Mrs. Parker's hair and scalp were damaged as a result of its improper administration.

The case was presented to a jury on a total of ten special issues. Issues Nos. 1 and 2 inquired as to the primary negligence of the appellee, Seligman & Latz, and were answered by the jury in favor of the Parkers, appellants here. Issues Nos. 6 through 9 referred to the appellee's submission of 'assumption of risk' and were also answered in the appellants' favor. Issue No. 10 inquired as to damages suffered by appellants, and the jury found these to be in the sum of $2,000.00. Issues Nos. 3 through 5 inquired as to the 'contributory negligence' on the part of the appellant. It is these contributory negligence issues, and the court's action in disregarding a jury finding on one of them, that we are herewith concerned.

In Issue No. 3, the jury found that Mrs. Parker failed to accurately inform Mr. Garcia as to the condition of her hair before the permanent wave treatment began. In Issue No. 4, the jury found that such failure was negligence. In Issue No. 5, however, the jury found that such failure Was not a proximate cause of the occurrence in question. Nevertheless, the trial court judge disregarded the jury's answer to Special Issue No. 5 and entered a take nothing judgment in favor of the appellee. The court's judgment recited, '* * * the court having heard the motion of the respective parties on August 21, 1967, is of the opinion that the jury's finding in Special Issue No. 5, that plaintiff's failure to accurately inform Mr. Garcia of the condition of her hair was not a proximate cause of the occurrence in question, was totally unsupported in evidence and that proximate cause exists as a matter of law. Accordingly, it is the opinion of the court that judgment should be rendered for the defendant, Seligman & Latz, Inc.'

It was undisputed in the record of the trial that Mrs. Parker had had her hair tinted approximately one month prior to the occurrence in question. Mrs. Parker testified that her hair had been pre-lightened approximately six months prior to the occurrence in question. Key issues were whether or not Mrs. Parker had advised Mr. Garcia of the pre-lightening some six months previously, and if not, whether her failure to do so was negligence. A vital determination was that submitted in the fifth special issue, whether or not her negligence in not informing Mr. Garcia of the pre-lightening was proximate cause of the injuries suffered by Mrs. Parker.

Appellee's position was that had their employee, Mr. Garcia, known of the condition of Mrs. Parker's hair prior to the permanent wave, that he would have used different methods and materials and that Mrs . Parker's failure to tell him, and not his negligence, was the cause of Mrs. Parker's injuries. Appellant took the position that Mrs. Parker's failure to tell Mr. Garcia, if any, had nothing to do with the injuries which she suffered and that it was Mr. Garcia's negligent commissions and omissions that were the cause of her injuries. Appellants' single point of error is that the trial court erred in holding, as a matter of law, that Mrs. Parker's failure to accurately inform Mr. Garcia of the condition of her hair was a proximate cause of the occurrence in question because there was evidence of probative force to support the jury's finding that such failure was not a proximate cause of the occurrence in question. Appellant contends that the statement of facts contain substantial testimony to the effect that such failure was not a proximate cause of Mrs. Parker's injuries and that the true cause was Mr. Garcia's failure to properly administer such permanent wave.

Rule 301 of the Texas Rules of Civil Procedure provides, 'The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any special issue jury finding that has no support in the evidence.'

It is fundamental that, 'The jury, not the court, is the fact finding body. The court is never permitted to substitute its findings and conclusions for that of the jury. The jury is the exclusive judge of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.' Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792. Here the jury found that appellant failed to...