Safeway Stores v. Webb

• Decision Date: 19 June 1942
• Docket Number: No. 2260.,2260.
• Citation: 164 S.W.2d 868
• Parties: SAFEWAY STORES, INC., OF TEXAS v. WEBB et ux.
• Court: Texas Court of Appeals

164 S.W.2d 868

SAFEWAY STORES, INC., OF TEXAS v. WEBB et ux.

No. 2260.

Court of Civil Appeals of Texas. Eastland.

June 19, 1942.

Rehearing Denied September 25, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, 104th District, Taylor County; Owen Thomas, Judge.

Suit by C. R. Webb and wife against the Safeway Stores, Incorporated, of Texas, to recover damages for the death of plaintiffs' daughter, who was fatally injured in a collision between an automobile in which she was riding and a truck owned by defendant and operated by one of its employees. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.

Blanton & Blanton, of Albany, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellees.

LESLIE, Chief Justice.

C. R. Webb and wife brought this suit against Safeway Stores, Inc., of Texas to recover damages for the death of plaintiffs' daughter, Lucille Webb, who, while riding in an automobile driven by S. B. Roberts, was fatally injured in a collision between said automobile and the rear end of a truck and trailer owned by defendant and operated by one of its employees. The alleged cause of action included several different grounds of recovery.

We shall not set forth the pleadings in full, or attempt to group the allegations constituting each such ground of recovery, but suffice it to say that after a careful consideration of the petition we are convinced that there is sufficient and consistent foundation in the pleadings for the material issues submitted to the jury.

The defendant alleged a number of different grounds of defense based upon contributory negligence. In a jury trial special issues were submitted relating to five grounds of recovery. The special issues pertaining to three grounds of recovery were found in favor of the plaintiffs. Two grounds of recovery were found in favor of the defendant. All issues of contributory negligence were found in favor of the plaintiffs. On the verdict judgment was rendered in favor of plaintiffs for $5,450. The defendant appeals.

The appeal is presented in this court on 56 assignments of error. In the disposition of practically all these assignments the majority of this court is in full accord with the views expressed in the opinion suggested by Associate Justice FUNDERBURK who first made a careful study of this record. Such views and discussions of his as are taken from that opinion and adopted in this one will appear in paragraphs quoted. In that opinion, and after careful consideration of the 56 assignments of error, he pretermitted discussion of and overruled all assignments of error, except 1, 2, 3, 28, 30, 44, 45, 46, 47 and 55. As stated, the majority sanctions that disposition of the points not discussed and concur in overruling points 46 and 47 for the reasons hereinafter set out and adopted from said opinion.

Points 1, 2, and 3 will first be disposed of. These are attacks on the verdict of the jury and judgment thereon in reference to certain issues presently to be noticed:

By issue No. 1 the jury found that "It was negligence for the defendant's truck driver to stop his truck at the time and on the occasion in question." By issue No. 1-A, the jury found that negligence to be a "proximate cause of the collision." Point 1 complains that the trial court's action in overruling defendant's motion for an instructed verdict was error. Point 2 assails the ruling of the trial court in refusing defendant a judgment non obstante veredicto "because the undisputed evidence shows * * * appellees wholly failed to establish any negligence upon the part of the appellant's truck driver." Point 3 asserts the answer of the jury to issue No. 1 (stated above) "is wholly unsupported by and contrary to the evidence."

Obviously, points 1, 2, and 3 raise, in substance, the same question, viz., that there is no evidence to raise an issue of negligence upon the part of the defendant's truck driver at the time and place, and under the circumstances, of the collision in which the plaintiffs' daughter lost her life. In the light of the attack thus made, these issues call for a consideration of the entire evidence.

Under the assignment or point complaining of the court's refusal to instruct a verdict, it is only necessary to determine whether under the evidence introduced an issue was raised. It is well established that a reviewing court will not disturb the verdict of the jury on conflicting evidence, where there is some evidence to support the verdict. Security Ins. Co. v. Vines, Tex.Civ.App., 48 S.W.2d 1017, writ refused; Jefferson Standard Life Ins. Co. v. Lindsey, Tex.Civ.App., 94 S.W.2d 549; Century Indemnity Co. v. Carnes, Tex.Civ. App., 138 S.W.2d 555(4); 3 Tex.Jur. p. 1096, sec. 768, and the many authorities there cited; 41 Tex.Jur. p. 1041, sec. 237.

An applicable rule stated somewhat differently is to this effect: "If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict." 17 Tex.Jur. p. 910, sec. 410; Wininger v. Ft. Worth & D. C. Co., 105 Tex. 56, 143 S.W. 1150; Century Indemnity Co. v. Carnes, Tex.Civ.App., 138 S.W.2d 555; McCarty v. Hogan, Tex.Civ. App., 121 S.W.2d 499; Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824.

With the above rule of law in mind, we have carefully read the entire statement of facts and readily reach the conclusion that as to said issues there is sufficient testimony to support the jury finding of negligence on the part of appellant's truck driver, as well as the finding that the same was the proximate cause of the injury. The evidence on said issues was conflicting and would have warranted either an affirmative or negative answer. In that state of the record, this court is without authority to substitute its finding upon the issues for those of the jury. Post v. State, 106 Tex. 500, 171 S.W. 707; Oats v. Dublin Nat. Bank, supra.

To so substitute this court's finding under the testimony would, in our opinion, amount to a clear encroachment on the plaintiffs' rights, since the Bill of Rights, Const. Art. 1, sec. 15, Vernon's Ann.St., "contains the emphatic declaration that `the right of trial by jury shall remain inviolate.'" Choate v. San Antonio & A. P. Ry. Co., supra; Dolen v. Lobit, Tex.Com.App., 262 S.W. 731; Shanks v. First State Bank of Coahoma, Tex.Civ.App., 70 S.W.2d 444.

Our convictions derived from a study of the testimony in the light of the above rules of law much incline us to set forth the testimony, but such testimony as a whole is embraced in 458 pages, and to incorporate herein merely that part which supports the verdict or "is favorable to the successful party" would unduly lengthen this opinion.

By point 28 the appellant insists that the court erred in submitting special issue No. 3. That issue was: "Do you find from a preponderance of the evidence that the act of the defendant's truck driver in parking the truck on the paved portion of the highway was negligence?" The issue was answered in the affirmative, and the point insists that the court erred in submitting issue 3 "because the undisputed evidence was that defendant's truck driver did not park its truck on said highway but merely stopped momentarily at a point where the pavement on his side was obstructed and on the other side * * * cars were fast approaching him from the opposite direction * * *." (Italics ours)

No question of sufficiency or insufficiency of the evidence is suggested by this point. Hall Music v. Robinson, 117 Tex. 261, 1 S.W.2d 857. Point 28 is presented as "germane to ground 57 in the appellant's motion for new trial." That ground of said motion complains merely of the court's action in excluding testimony referred to in preceding grounds 54, 55 and 56 of said motion. In these preceding grounds, respectively, the appellant insists that the trial court erred in excluding the testimony of its office manager, Knuckles; its district manager Williams, and its Abilene manager Barton to the effect that Mason, the driver of appellant's truck at the time of the accident was a careful, efficient and dependable driver. Certainly there is nothing in ground 57, based on the exclusion of such testimony, tending to establish that the court erred as alleged in point 28, especially in matters of "undisputed evidence."

Further, if appellant meant to refer to ground 37, motion for new trial, as the ground of error to which point 28 is germane, rather than ground 57 specifically referred to in the point and so considered above, then point 28 is equally without merit for the reasons above stated, and especially for the reasons and upon the authorities set forth in the disposition of point 55 following.

In point 28 appellant is talking about facts established by "undisputed evidence", while in the motion for new trial (ground 37) he asserts the court erred in submitting issue 3 "because the court assumed that the driver of the defendant's truck had `parked the truck on the paved portion of the highway' and was charged [a charge] on the weight of the evidence", etc. (Italics ours) No such exception was made to the submission of the issue before the same was read to the jury. Such exceptions that are not timely made and presented to the court are waived. City of Abilene v. Moore, Tex.Civ.App., 12 S.W.2d 604, 606, and other authorities cited under the discussion herein of points 30 and 55.

In the Moore case, this court, in an opinion by Chief Judge Hickman, said: "It is urged in the brief that the issue assumed facts and was on the weight of the evidence. The record does not disclose that this objection was offered in the appellant's criticism of the court's charge, and for that reason it cannot...