Schafer v. Stevens

• Decision Date: 21 July 1961
• Docket Number: No. 15853,15853
• Citation: 352 S.W.2d 471
• Parties: Carl B. SCHAFER, Appellant, v. Ruth STEVENS, Independent Executrix, et al., Appellee.
• Court: Texas Court of Appeals

Page 471

352 S.W.2d 471

Carl B. SCHAFER, Appellant, v. Ruth STEVENS, Independent Executrix, et al., Appellee.

No. 15853.

Court of Civil Appeals of Texas, Dallas.

July 21, 1961.

Rehearing Denied Dec. 1, 1961.

Thompson, Knight, Wright & Simmons and Timothy E. Kelley, Dallas, for appellant.

Witts, Geary, Hamilton, Brice & Lewis, Jim K. Choate and W. S. Barron, Jr., Dallas, for appellees.

DIXON, Chief Justice.

This is a suit for wrongful death brought pursuant to Art. 4675, Vernon's Ann.Civ.St. by Ruth Stevens, Independent Executrix of the Estate of Thomas H. Stevens, deceased, for the benefit of herself as surviving widow, aged 30 years, and for the two minor children, Susan Delinda Stevens, aged 7 years, and Thomas H. Stevens, Jr., aged 4 years.

Appellee alleged that Thomas H. Stevens, aged 32 years, was killed August 23, 1958, in the City of Dallas Texas, when an automobile in which he was riding was negligently driven against a tree by appellant Carl B. Shafter. Appellee pled both ordinary and gross negligence. She also pled and introduced evidence to the effect that Thomas H. Stevens, at the time of his death was Executive Vice-President of Tex-Mex Corporation at a salary of $1500 per month with the prospect of a salary increase in the near future to $2500 per month; and that he was regularly contributing from $800 to $1100 per month to his family as living expenses.

A judgment based on a jury verdict was rendered in favor of appellee for $253,151.51, allocated as follows: For Ruth Stevens surviving widow, $185,118.51; for Susan Delinda Stevens, $29,112; for Thomas H. Stevens, Jr., $36,920; for Ruth Stevens, Independent Executrix, $2011, as burial expenses.

Appellant's first point in appeal is that the judgment is fundamentally erroneous because of the failure of appellee to join as plaintiffs, or to sue for the benefit of the surviving parents of her deceased husband.

Art. 4675, V.A.C.S. provides that actions for damage arising from death shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the deceased.

The parents are not parties to this suit, nor is the suit brought for their benefit. That they were living at the time of the trial is not revealed by the pleadings or motion for new trial. It is revealed only by examination of the statement of facts, wherein the testimony of appellee is reporduced as follows:

'Q. Where do Mr. Stevens' parents live?

'A. In Lafayette, Alabama.'

Appellant has cited numerous cases in support of his contention that failure to join or to account for the absence of any one of the named beneficiaries under the wrongful death statute is fundamental error. Among the cases cited are East Line & Red River R. Co. v. Culberson, 68 Tex. 664, 5 S.W. 820 (1887); Fort Worth & D C. R. Co. v. Wilson, 85 Tex. 516, 22 S.W. 578; San Antonio & A. P. R. Co. v. Mertink, 101 Tex. 165, 105 S.W. 485 (1907); Dennis v. Gulf C. & S. F. Ry. Co., 148 Tex. 387, 224 S.W.2d 704 (1949); Webb v. Huffman, Tex.Civ.App., 320 S.W.2d 893.

However, in this case appellant did not during the trial or in his motion for new trial make any complaint as to the non-joinder of the parents of deceased. Complaint of their non-joinder is made for the first time in appellant's brief on appeal. Appellee contends that in such a state of the record it must be held that appellant has waived the right to urge error by reason of the non-joinder of the parents. We agree with appellee.

In 1941 our present Rules of Civil Procedure were promulgated, including Rule 374, Texas Rules of Civil Procedure. This Rule expressly provides that a ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived. Our courts have held that notwithstanding the said rule, truly fundamental error may still be noticed for the first time on appeal; but the concept of fundamental error is much narrower now than it was under the old procedural statutes.

It is now held that when an error involves matters of public interest and the record affirmatively and conclusively shows error, or affirmatively and conclusively shows that the court rendering judgment was without jurisdiction of the subject matter, the error will be regarded as fundamental. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W. 979; City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77, 85. Except in such instances, fundamental error is now rare indeed. See article by Associate Justice Joe Greenhill, entitled 'Presentation of a Case to the Supreme Court of Texas', 38 Tex.Law rev. 538, 541.

Moreover it has been held many times, both before and since promulgation of the new rules in 1941, that when it is necessary to examine the statement of facts to discover error, the error is not fundamental. O'connor v. Gable, Tex.Civ.App., 298 S.W.2d 209; Krottinger v. Marchand, Tex.Civ.App., 252 S.W.2d 217; Insurors Indemnity & Ins. Co. v. Associated Indemnity Corp., 139 Tex. 286, 162 S.W.2d 666, 670; White v. Glengarry Oil Co., 137 Tex. 626, 156 S.W.2d 523; Texas & Pacific Ry. Co., v. Lilly, 118 Tex. 644, 23 S.W. 697, 699; Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903; 3-B kTex.Jur. 39.

In the situation presented to us here, where appellant did not complain until the case was on appeal, and where even Tex.Jur. 39. of facts to discover error, we hold that appellee's failure to join the parents of deceased as parties or beneficiaries is not fundamental error. Appellant's first point on appeal is overruled.

In his second and third points appellant asserts that there was no evidence or in the alternative the evidence was insufficient to support the submission to the jury of special issues Nos. 2, 4, 7, 9, 12, 15, 21 and 23. Notwithstanding their wording these points must be considered 'no evidence' points. See Mayflower Inv. Co. v. Stephens, Tex.Civ.App., 345 S.W.2d 786, 797, quoting from an article by Chief Justice Robert W. Calvert in Tex. Law Review, Vol. 38, No. 4 for April 1960.

Special Issue No. 2 inquired whether the motivating influence of appellant in transporting Thomas H. Stevens in the automobile at the time of the collision was the furtherance of a business deal in which appellant had the expectation of tangible benefit of pecuniary nature. Issues were submitted to the jury inquiring whether (a) appellant was driving the car at an excessive rate of speed, (b) in excess of 35 miles per hour, or (c) failed to stop his car at a stop sign at the intersection, or (d) failed to steer the car in such a manner as to keep it on the roadway, or (e) to apply the brakes on the automobile, or (f) drove the car at an excessive rate of speed under certain existing hazardous condition, to-wit, a curve in the road, a rough road and a stop sign near the intersection. Issues Nos. 4, 7, 9, 12, 15, 21 and 23 inquired whether the above alleged acts were done in heedless and reckless disregard of the rights of others including Thomas H. Stevens.

The obvious purpose of special issue No. 2 was to obtain a fact finding which would furnish a basis for determining whether Stevens was a guest within the meaning of the Guest Statute, Art. 6701b, V.A.C.S. The purpose of the others of the above named special issues was to determine whether (if it had been found that Stevens was a guest within the meaning of the Statute) appellant's acts were done in such a manner as to cast liability on appellant under the guest statute.

Later in this opinion we shall review the material evidence. For the present we shall merely say that there is some evidence of probative force in the record to support the submission of the issues. That being so it was the duty of the court to submit the issues even though the court may have felt that the evidence was insufficient to support an affirmative answer by the jury. See Wood v. American Security Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559, 565, and authorities there cited.

Appellant's second and third points are overruled.

In his fourth point appellant says that the affirmative answer of the jury to special Issue No. 2 is against the great weight and preponderance of the evidence. The nature of this point requires a careful study of the evidence.

Appellee, Mrs. Ruth Stevens, testified that her husband had helped organize Tex-Mex Corporation, of which he was Executive Vice-President. The corporation had been formed for the purpose of promoting various business interests. The first good thing that it had done was the building of Holiday Inn Hotel. Because of the type of business he was in, her husband would sometimes do more work after business hours than he would during business hours.

Carl B. Schafer testified that he is a promoter and broker with the continental United States as his territory. It is his business to find capital for business ventures. He and Joe D. Farris had been discussing mining properties in Arizona, in which properties Farris had an interest he was desirous of developing. Schafter knew that Tex-Mex Corporation had mining equipment in Arizona which was idle at that time. About 4:00 P. M. Schafer called Stevens at his office and arranged a meeting. Stevens agreed to meet Schafer and Farris that evening at the Skyriders Club at Holiday Inn Hotel on Lemmon Avenue. Stevens told Schafer he would arrive late, as he first had to attend a cocktail party elsewhere. He arrived about 9:30 o'clock that evening.

There is no doubt this meeting was a business appointment. We quote from Schafer's testimony:

'Q * * * you called Tom Stevens and made a prearranged business appointment, * * * for him to talk to Joe Farris, as you just said to the jury?

'A That is right.

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'A You men gathered together that evening for the purpose of a business discussion, didn't you, pursuant to a call you made to Tom Stevens?

'A Yes, sir.

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'Q But...