Redman v. Bennett

• Decision Date: 07 April 1966
• Docket Number: No. 211,211
• Citation: 401 S.W.2d 891
• Parties: William REDMAN, Appellant, v. M. E. BENNETT, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 891

401 S.W.2d 891

William REDMAN, Appellant, v. M. E. BENNETT, Appellee.

No. 211.

Court of Civil Appeals of Texas.

Tyler.

April 7, 1966.

Rehearing Denied April 28, 1966.

W. E. West, Canton, for appellant.

Enoch, Fletcher, Grand Saline, for appellee.

DUNAGAN, Chief Justice.

This is a damage suit originating in the County Court of Van Zandt County, Texas. The case was tried before the court without a jury, and from an adverse judgment appellant has perfected his appeal. This appeal comes to us without a complete record, but does include the findings of fact and conclusions of law of the trial court.

A judgment was entered in this case October 1, 1965, and the material portions thereof are as follows:

'Both parties came in person and by Attorney, and announced ready for trial. The Court having heard the evidence and argument of Counsel finds that the accident was not an unavoidable accident, but was due to negligence on the part of the defendant as alleged by plaintiff. The Court finds that the automobile in question had a cash market value at Grand Saline of $600.00 immediately before the accident, and that its cash market value at Grand Saline was $275.00 immediately after the accident.

'It is therefore, the Judgment of the Court that the plaintiff, M. E. Bennett, do have and recover of the defendant, William Redman, the sum of $325.00 together with all cost of suit for which execution may issue. This Judgment will bear interest at the rate of 6% Per annum from September 17, 1965.

'To which Judgment the defendant in open Court excepted and gave notice of appeal to the Twelfth Court of Civil Appeals of Texas, at Tyler, Texas. Entered this 1st day of October, 1965.'

Plaintiff alleged in Paragraph III of his petition that:

'The defendant ran a red light just before he struck plaintiff's car, and skidded his car into plaintiff's car. He was guilty of the following acts of negligence each of which together with the running of the red light was the proximate cause of the injury to plaintiff's car:

'1. The defendant did not have his car under proper control.

'2. The defendant was driving too fast at the time, and under the conditions then existing.

'3. The defendant did not properly apply his brakes.

'4. The defendant did not observe a proper lookout.

'5. The defendant did not propel his car to the left far enough to miss plaintiff's car.'

Pursuant to request of appellant, the trial court made and filed on October 13, 1965, its findings of fact and conclusions of law, to-wit:

'FINDINGS OF FACT AND CONCLUSIONS OF LAW

'THE COURT FINDS AND CONCLUDES:

'That suit was brought by Plaintiff against Defendant alleging damage to Plaintiff's automobile as a result of negligent acts of Defendant;

'that the Plaintiff, M. E. Bennett, on May 8, 1965, was the owner of a 1958 Impala Chevrolet automobile which was legally parked approximately 15 feet East of and slightly South of the Southeast corner of the intersection of Highway 80 and Main Street in Grand Saline, Texas;

'that Defendant Redman had travelled the same highway route seven to eight times and was familiar with the physical conditions of the highway and the existence of the blinking caution light approximately one block West of the intersection, and the traffic light at the intersection;

'that the intersection and highway was wet at the time of the accident and the Defendant Redman proceeded Eastward in a pickup truck down a 15% Slope on Highway 80 at a speed of 25 to 30 mph to a point approximately 15 feet West of the intersection when he first applied his brakes, upon the traffic light changing from amber to red;

'that Defendant Redman's pickup truck slid through the intersection at an angle with the traffic lanes and collided with Plaintiff's vehicle, travelling a total distance of 120 feet from the point of application of brakes to the point of impact with the rear of Plaintiff's automobile;

'that the front end of Plaintiff's automobile was damaged as well as the rear by the force against a guard rail and the cash value of Plaintiff's 1958 Chevrolet Impala automobile at Grand Saline, Texas, immediately before the accident was $600.00 and immediately after the accident, $275.00;

'that Defendant Redman failed to keep his vehicle under proper control, was driving at an excessive speed under conditions then existing and did not properly apply his brakes; that such acts and omissions were negligence which were the proximate cause of the accident, and consequently, the Plaintiff's damages in the amount of $325.00.

'that the accident was not the result of an unavoidable accident;

'That running the red light was not negligence per se.'

Appellant brings forward a number of Points of Error, each of which challenge the sufficiency of the evidence. These Points challenging the sufficiency of the evidence can be determined only by referring to the statement of facts. There was none filed in this case.

Since this case has come to this court without a record of the evidence, we are bound by the findings of fact of the trial court and must presume that the evidence was sufficient and that every fact necessary to support the findings and judgment within the scope of the pleadings was proved at the trial. Fitchett v. Bustamente, 329 S.W.2d 920 (Tex.Civ.App.) 1959, writ refused, n.r.e.; Cunningham v. Fort Worth Pipe & Supply Company of Abilene, 384 S.W.2d 229 (Tex.Civ.App.) 1964, n.w.h.; Howell v. First Frderal Savings And Loan Association of New Braunfels, 383 S.W.2d 484 (Tex.Civ.App.) 1964, writ of error refused, n.r.e.; Southern Pine Lumber Co. v. Smith, 183 S.W.2d 471 (Tex.Civ.App.) 1944, writ refused, without merit; Cruz v. First Credit Corporation, 380 S.W.2d 749 (Tex.Civ.App .) 1964, n.w.h.; Phillips v. American General Insurance Company, 376 S.W.2d 808 (Tex.Civ.App.) 1964, n.w.h.; Harris v. Lebow, 363 S.W.2d 184 (Tex.Civ.App.) 1962, writ of error refused, n.r.e.; Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App.) 1964, error refused, n.r.e.; Ehrhardt v. Ehrhardt, 368 S.W.2d 37 (Tex.Civ.App.) 1963, writ refused; Gelfond v. Levit, 398 S.W.2d 659 (Tex.Civ.App.) 1966, n.w.h .; Chadwick v. Glens Falls Insurance Company, 340 S.W.2d 501 (Tex.Civ.App.) 1960, n.w.h.; Turner v. Day, 322 S.W.2d 300, 305 (Tex .Civ.App.) 1959, n.w.h.; Guerra v. Guerra, 362 S.W.2d 421 (Tex.Civ.App.) 1962, n.w.h.

Points attacking the judgment require a determination of whether there was proof to support it. The record shows evidence was heard. At the request of appellant, the court filed its findings of fact, which support the judgment for appellee. The record consists of a transcript without a statement of facts; these points thus present nothing for review. Sekaly v. Hilton Center, Inc., 340 S.W.2d 827 (Tex.Civ.App.) 1960, n.w.h.

On November 1, 1965, appellant filed what is labeled 'Defendant's Requested Findings of Fact' which was given by the court.

Appellee contends that the purported supplemental findings of fact cannot be considered as the request therefor was not made within the five-day period prescribed in Rule 298, Texas Rules of Civil Procedure. The request was, however, acceded to by the trial judge and the supplemental findings prepared and filed promptly so that the transcript could have been filed in this court within the period of time prescribed by Rule 386, Texas Rules of Civil Procedure. Anderson v. Geraghty, 212 S.W.2d 972 (Tex.Civ.App.) 1948, n.w.h. We overrule appellee's objection.

The appellant contends that: 'The original Findings of Fact and Conclusions of Law as the Court found without support of any testimony, is completely erased by the Court's approving Appellant's Requested Findings of Fact and his original Findings should either be ignored or they should be read in the light of his Findings of Fact as approved when requested by Appellant.' We recognize the rule of law that any conflict between the original findings of fact and the supplemental findings must be resolved in favor of the later findings. Anderson v. Ceraghty, supra; Waters v. Yockey, 193 S.W.2d 575 (Tex.Civ.App.) 1946, n.w.h.; Hood v. Adams, 334 S.W.2d 206 (Tex.Civ.App.) 1960, n.w.h.

However, we do not believe that any conflict exists because the purported requested findings of fact consist only of testimony given by the defendant-appellant and the Chief of Police of Grand Saline, and which at least in part, was only a mere conclusion. Nowhere in the purported requested findings of fact does the court find such testimony to constitute the facts in the case. Neither does the trial judge certify that this statement of the evidence contains all of the evidence introduced with the exception of Fact No. 1 which reads: 'The Court finds that there was only the testimony of the Defendant that he was driving along Highway 80 at a speed of 25 to 30 miles per hour, there being no other vehicles on the block approaching the intersection with Main Street of the town of Grand Saline.' A similar fact situation was involved in the case of Gelfond v. Levit, supra. This is only one of the findings made by the trial court in support of its judgment. If this finding should be deficient in any respect, it does not disturb the other findings made that justify the judgment. Foran v. Smith, 228 S.W.2d 251, 256 (Tex.Civ.App.) 1950, n.w.h.

Moreover, in a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony, and findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. Niagara Fire Insurance Company v. Numismatic Company of Fort Worth, 380 S.W.2d 830, 836 (Tex.Civ.App.) 1964, writ refused, n.r.e.; Comet Motor Freight Lines v. Holmes, 175 S.W.2d 464, 467 (Tex.Civ.App.) 1943, writ refused, want of merit; Richardson v. Raby, 376 S.W.2d 422 (Tex . Civ.App.) 1964, n.w.h. The trier of facts, as the sole judge of the credibility of the witnesses, could believe or disbelieve the testimony of the defendant...