Sherwin-Williams Co. of Texas v. Delahoussaye

• Decision Date: 13 January 1939
• Docket Number: No. 13851.,13851.
• Citation: Sherwin-Williams Co. of Texas v. Delahoussaye, 124 S.W.2d 870 (Tex. App. 1939)
• Parties: SHERWIN-WILLIAMS CO. OF TEXAS v. DELAHOUSSAYE.
• Court: Texas Court of Appeals

124 S.W.2d 870

SHERWIN-WILLIAMS CO. OF TEXAS v. DELAHOUSSAYE.

No. 13851.

Court of Civil Appeals of Texas. Fort Worth.

January 13, 1939.

Rehearing Denied February 17, 1939.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit by F. A. Delahoussaye against the Sherwin-Williams Company of Texas to recover for damages to plaintiff's automobile. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

T. R. Boone, E. T. Duff, and Kearby Peery, all of Wichita Falls, for appellant.

Kouri, Parish & Locke, of Wichita Falls, for appellee.

DUNKLIN, Chief Justice.

About three o'clock in the afternoon, while it was raining, there was a collision between a truck belonging to the Sherwin-Williams Company of Texas, a corporation, driven by Berry Dillon, its employee, and an automobile belonging to F. A. Delahoussaye and driven by his wife. In this suit F. A. Delahoussaye recovered judgment against the Sherwin-Williams Company of Texas for the sum of $400, for damages to the automobile, and defendant has appealed.

The collision occurred in the City of Wichita Falls at the intersection of Filmore Street, running north and south, and Avenue H., running east and west. Mrs. Delahoussaye was driving north on Filmore Street, on its right hand side, and Berry Dillon was driving the truck east on Avenue H. When the automobile had reached a point near the center of the crossing of the two streets, Mrs. Delahoussaye suddenly discovered the approach of the truck and stopped her car. At that instant, the rear portion of the truck collided with the front of the automobile and damaged it, but Mrs. Delahoussaye was not injured.

By traffic ordinances of the City of Wichita Falls, in force at the time of the accident, it was made unlawful to drive any motor vehicle on the streets of the City at higher rate of speed than twenty miles per hour. And every driver of such a vehicle, while approaching the intersection of two streets, is required to yield the right of way to another vehicle approaching the intersection to his right on the other street at the same time, and to decrease the speed of his car to ten miles per hour, and have his car under control before crossing the intersection.

Preliminary to the submission of the special issues, the court gave the usual definitions of "negligence" and "contributory negligence", and also this definition of "proximate cause": "Proximate cause is that cause which in a natural and continuous sequence and unbroken by any new or independent cause, produces an injury and without which the injury would not have occurred, and when in the light of the surrounding circumstances the injury, or a similar one, out go have been foreseen or anticipated by a person of ordinary care and prudence."

To that definition defendant made this objection: "The defendant objects to the definition of proximate cause for the reason that the same is not a proper definition, in that there is no instruction therein of any element of foreseeableness, and in order for an act of negligence to be a proximate cause it must have been reasonably anticipated and foreseen that the injury, or some similar injury, would occur, and the term proximate cause as defined in the court's charge is not clear on the element of foreseeableness and is a misstatement of the law therein, and the defendant here and now requests the court to give a proper definition of proximate cause telling the jury that negligence could not be a proximate cause unless it could have been reasonably anticipated or foreseen by an ordinary prudent person that the damages would occur."

In appellant's brief, that objection is made the basis of an assignment of error, in connection with which it is urged that the definition was erroneous and misleading, in using the words "out" and "go", instead of the words "ought to have been foreseen." That particular criticism was not included in the objection urged, and therefore appellant is in no position to complain of it here, especially so since it is clear that it is merely a typographical error, which could not have misled the jury. 3 Tex.Jur., par. 141, p. 212. Trahan v. Smith, Tex.Civ.App., 239 S.W. 345. Southwestern Telegraph & Telephone Co. v. Davis, Tex.Civ.App., 156 S.W. 1146, and decisions cited.

In answer to special issues, the jury found that at the time and place of the accident, the driver of defendant's truck was driving the same at a speed in excess of twenty miles per hour, and was guilty of negligence in so doing, which was a proximate cause of the collision. And further, he failed to keep a proper lookout for vehicles approaching the crossing on the cross street to his right, and was guilty of negligence in such failure, which was likewise a proximate cause of the collision.

Those findings have sufficient support in the evidence and assignments challenging them as being without such support are overruled.

The jury further found that plaintiff's automobile entered the street intersection before it was entered by the truck, and was not being operated at a rate of speed in excess of twenty miles per hour; and Mrs. Delahoussaye was not guilty of contributory negligence in driving the same at the speed she was driving.

Issue No. 19 reads as follows: "Do you find from a preponderance of the evidence that the driver of plaintiff's automobile discovered the perilous position of the defendant's truck in sufficient time whereby in the exercise of ordinary care in the use of all means at hand consistent with the safety of herself and the plaintiff's car, could have avoided the collision? Answer as you find the facts to be. Answer: No."

Defendant pleaded generally negligent failure of Mrs. Delahoussaye to keep a proper lookout for traffic and specifically her negligence to keep a proper lookout for vehicles approaching the crossing from the left, as was defendant's truck.

The court submitted the following special issue: "Do you find from a preponderance of the evidence that the driver of plaintiff's car failed to keep a proper lookout for approaching vehicles and pedestrians at the time and place in question? Answer, she did keep a proper lookout or did not keep a proper lookout. Answer: She did keep a proper lookout."

One of the objections made by defendant to that issue was that it did not submit the specific defense pleaded. And in addition to that objection, defendant tendered a requested issue as to whether Mrs. Delahoussaye failed to keep a proper lookout for vehicles approaching from her left, which the court refused to submit. In that connection, appellant cites testimony of Mrs. Delahoussaye herself, that before driving into the intersection of the two streets, she looked to her right and in front, but did not look to her left. But she further testified that she glanced to her left but did not see the truck until her daughter hollered to her, and that she was driving about 17 miles an hour. The issue submitted was broader than the issue of contributory negligence specially pleaded, but it also included that defense. Although Mrs. Delahoussaye did not have the lawful right to rely solely on the presumption that the driver of a vehicle on Avenue H, approaching the crossing from her left, would yield her the right of way, as required by the city ordinance, and to take no precaution against a possible violation of that requirement, yet the jury had the right to determine from all the facts and circumstances in evidence whether she was guilty of contributory negligence in failing to look to the left for such approaching traffic on Avenue H before she entered the street intersection. Lewis v. Martin, 120 S.W.2d 910, by the Amarillo Court of Civil Appeals, opinion by Chief Justice Jackson, writ of error refused. Furthermore, the court having submitted the issue of contributory negligence in general terms, as pleaded by the defendant, submission of the additional specific issue of contributory negligence would have been subject to the criticism of undue emphasis of that defense. Accordingly, we are unable to concur with appellant's contention that the submission of the special issue just quoted presents reversible error. Akers v. Morris, Tex.Civ.App., 104 S.W. 2d 535, and authorities cited, writ of error dismissed by Supreme Court.

Authorities relied on by appellant, such as Texas & N. J. Railway Co. v. Crow, 121 Tex. 346, 48 S.W.2d 1106; Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552; Fidelity & Casualty Co. v. Van Arsdale, Tex.Civ.App., 108 S.W.2d 550; Traders & Gen. Ins. Co. v. Kincaid, Tex.Civ.App., 116 S.W.2d 868, are not applicable here. In those cases it was held error to submit issues of negligence as a basis for recovery by plaintiff that were not alleged in his pleadings. It is also true, as argued by appellant, that the same rule of procedure is applicable to defendant's plea of contributory negligence. But, as shown above, the special issue submitted was in the same terms as defendant's general allegation of Mrs. Delahoussaye's negligence in failing to keep a proper lookout for approaching traffic, and therefore included also the special plea of her negligence in failing to keep a proper lookout to her left.

The cost of repairs of plaintiff's automobile was $137.50. F. H. Rinehart, who did the repair work, testified: "When I made the contract to fix this car up I agreed to put it in good mechanical order and good appearance. It was a turn-key job. We always guarantee to do that. After I made the repairs and finished the job it was as good as could be repaired. I think we put one new fender and the other was rolled out. We put the car in the lining machine and it checked up all right."

But he further testified that he did not think any car is as good after it has been in a wreck as it was before, because the wreck depreciates it in value; that he had taken care of plaintiff's car and done service work on it for some...