Schmoker v. French

• Citation: 7 S.W.2d 177
• Decision Date: 16 May 1928
• Docket Number: (No. 2997.)
• Parties: SCHMOKER v. FRENCH.
• Court: Court of Appeals of Texas

7 S.W.2d 177

SCHMOKER v. FRENCH.

(No. 2997.)

Court of Civil Appeals of Texas. Amarillo.

May 16, 1928.

Appeal from Wilbarger County Court; J. V. Townsend, Judge.

Suit by J. K. French against Ernest Schmoker. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Killough & Dotson, of Vernon, for appellant.

M. G. Poteet, of Vernon, for appellee.

HALL, C. J.

This suit was filed by the appellee French against the appellant in the justice court of Wilbarger county, to recover damages in the sum of $190 alleged to have resulted to appellee by reason of the collision between automobiles driven by the respective parties.

Appellee alleged that he was driving east along the Vernon and Crowell highway at a moderate rate of speed when the appellant drove into the highway from the south side at an excessive rate of speed in a negligent manner, and damaged appellee's car in the sum mentioned.

Appellant answered by general demurrer and general denial, and alleged that the damages were the direct and proximate result of plaintiff's own negligence in driving his car at an unlawful and dangerous rate of speed, and, by cross-action, sought to recover $100 damages against the appellee.

Appellee recovered judgment in the justice court in the sum of $150. Upon appeal to the county court, he again recovered, the amount of his damages being assessed at only $95. Judgment was entered accordingly.

The first proposition urged by the appellant is that the court could not legally render a judgment based upon the verdict of the jury, for the reason that the jury failed to answer the following material issue: "Was, or not, the collision a result of an unavoidable accident?"

The jury failed to answer this issue, but did find, in response to other issues, that Schmoker was guilty of negligence in driving on the highway, at the time and place of the wreck, in the manner in which he drove upon it, and that such negligence was the proximate cause of the injury to plaintiff's car.

In the original opinion, we held that, the jury having found as above stated, the effect of such finding was that the collision was not the result of an unavoidable accident, and that the answer to the issue inquiring whether the injury resulted from an unavoidable accident was comprehended in their two findings above stated.

Upon reconsideration of the case, we are convinced that we erred in so holding. Schmoker was entitled to prove an unavoidable accident under a general denial (Suttle v. Texas Electric Ry. Co. (Tex. Civ. App.) 272 S. W. 256); and, since there was evidence upon which the jury might have found that the damages resulted from an unavoidable accident, the court erred in not requiring the jury to answer that issue and in rendering a judgment upon the verdict which failed to answer it. Colorado & S. Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908. We therefore sustain this contention, and the original opinion is withdrawn.

The third and fourth propositions each urge two separate, unrelated propositions of law. Being duplicitous, they violate the requirements of Court of Civil Appeals Rule 31, and, therefore, cannot be considered.

It is next contended (1) that there was no evidence to raise the first special issue submitted by the court; (2) that the jury's answer to said issue was against the great weight and preponderance of the evidence; (3) that there was no evidence authorizing the court to submit the second special issue; (4) that the answer of the jury to special issue No. 8, inquiring whether or not French failed to exercise ordinary care in driving his car, was against the great weight of the evidence. The...