Renner v. National Biscuit Co.

• Decision Date: 24 June 1943
• Docket Number: No. 11548.,11548.
• Citation: 173 S.W.2d 332
• Parties: RENNER et al. v. NATIONAL BISCUIT CO.
• Court: Texas Court of Appeals

173 S.W.2d 332

RENNER et al. v. NATIONAL BISCUIT CO.

No. 11548.

Court of Civil Appeals of Texas. Galveston.

June 24, 1943.

Rehearing Denied July 22, 1943.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Consolidated actions by Earl Renner and Callie D. Stewart against National Biscuit Company for injuries sustained in automobile collision. From a judgment for defendant, the plaintiffs appeal.

Affirmed.

Earl Cox and Arthur Mandell, both of Houston (Earl Cox, of Houston, of counsel), for appellants.

Wood, Gresham, McCorquodale & Martin and M. S. McCorquodale, all of Houston, for appellee.

GRAVES, Justice.

The appellee acquiesces in the correctness, as such, of this statement from appellants' brief:

"This is a suit for the recovery of damages because of personal injuries. Earl Renner and Callie D. Stewart, appellants here and plaintiffs below, brought separate suits against the National Biscuit Company to recover damages because of injuries sustained by them when the automobile which was being driven by Callie D. Stewart, and in which Earl Renner was riding as a passenger, was involved in a head-on collision with the truck of the National Biscuit Company, appellee here, and defendant below. Upon motion these two suits were consolidated and were tried together. An element of the appellee's defense was that its truck had been collided with by another car going in the same direction as was the appellants' car immediately prior to the collision of the truck with the appellants' car, and that as a result of the first collision its driver had lost control of its truck. The jury found that the plaintiffs below were in no manner negligent; that the collision was not the result of an unavoidable accident; that the defendant's truck was collided with by the third automobile just before colliding with appellants' car; that such truck was thrown out of control; that the driver did not regain control before striking appellants' car; that the failure of the driver to regain control was negligence, and that such negligence was a proximate cause of the collision with appellants' car, and that appellants had been damaged in the total sum of $23,425. The trial court overruled the appellants' motion for judgment on the verdict of the jury; overruled appellee's motion for a judgment non obstante veredicto; sustained appellee's motion that the findings of the jury that appellee's driver was negligent in failing to regain control of the truck and that such negligence was a proximate cause of the collision be disregarded, and that judgment be entered in its favor on the remainder of the jury's findings, and entered judgment on the remainder of the jury's findings in favor of the appellee."

In material substance appellants make in this court but two points for a reversal of the judgment so rendered adversely to them below:

(1) The trial court prejudicially erred in so disregarding the jury's verdict, in response to special issues Nos. 6 and 7, to the effect that the failure of appellee's driver to regain control of its truck before striking their car was both negligence and a proximate cause of the collision, because the evidence was sufficient to support both such findings;

(2) The remainder of the jury's findings — after such elimination of the appellee's driver's negligence — "were in such irreconcilable conflict as that they could not form the basis for the entry of any judgment whatsoever, for that such remaining findings were that the appellants were not guilty of any act which was negligent; the appellee was not guilty of any act which was negligent, but yet the collision complained of was not the result of an unavoidable accident."

After careful consideration of the record, the able briefs, and oral arguments of both sides, this court is unable to see eye to eye with either of appellants' contentions; to the contrary, it must hold that no reversible error has been made to appear.

During the oral argument it was mutually conceded by the parties that, under Rule 301, Texas Rules of Civil Procedure, the trial court properly disregarded these two stated findings as to the appellee's driver's negligence, provided they "had no support in the evidence"; so, as appellants' first point on the appeal succinctly states it, that is the controlling issue of law presented here.

It may be well to parenthetically insert at this stage the recital that the appellee while first combatting affirmatively both given contentions of the appellants, also urges a further one to the effect that, in no event, could a judgment in appellants' favor have been properly rendered, or be permitted to stand, even were it held that the evidence did raise issues of fact over whether or not appellee's driver had been so negligent, because it further conclusively appears that such two findings were so against the overwhelming weight and preponderance of the evidence as to have been clearly wrong.

Since all the participants on both sides of this accident lived to and did tell the story of it, and that as eye-witnesses, the corpus of the happening was quite substantially, in the first instance, established by them; that was added to by other witnesses, testifying as to what they saw and heard, along with what the physical facts of the scene showed.

While the...