Simmons Motor Co. v. Mosley

• Court: Texas Civil Court of Appeals
• Writing for the Court: PHILLIPS; HUGHES
• Citation: Simmons Motor Co. v. Mosley, 379 S.W.2d 711 (Tex. Ct. App. 1964)
• Decision Date: 20 May 1964
• Docket Number: No. 11196,11196
• Parties: SIMMONS MOTOR COMPANY et al., Appellants, v. Robert A. MOSLEY, Appellee.

Page 711

379 S.W.2d 711

SIMMONS MOTOR COMPANY et al., Appellants, v. Robert A. MOSLEY, Appellee.

No. 11196.

Court of Civil Appeals of Texas, Austin.

May 20, 1964.

Rehearing Denied June 10, 1964.

Gay & Meyers, Austin, for appellants.

Brown, Sparks & Erwin, Will G. Barber, Austin, for appellee.

PHILLIPS, Justice.

Robert A. Mosley, the plaintiff below and appellee in this Court, brought suit against the Simmons Motor Company, et al., defendants below and appellants in this Court, in behalf of his wife who was injured as hereinafter described.

On April 23, 1961, the Mosleys were driving to church in their new 1961 Valiant which had been purchased and delivered to the Mosleys by the Simmons Motor Company on March 8, 1961. Suddenly the hood of the car raised up, crashed against the windshield blinding Mr. Mosley's view. As he applied his brakes to stop the car his wife placed her right hand against the dashboard and thrust her left arm out to keep their three year old son, who was on the front seat between them, from falling against the car. Although she succeeded in saving her son from injury, her twisting and straining motion ruptured a disc in her spine, which subsequently necessitated a laminectomy operation. Mrs. Mosley went through a period of intense pain prior to the operation, and, following an operation in which the ruptured disc was removed, she has experienced a slight withering of her arm accompanied by a slight weakness thereto. In addition, her arm is subject to occasional periods of muscle spasm and pain which according to medical testimony may persist throughout her life. There is no controversy in this suit as to Mrs. Mosley's damages.

In his petition, Mosley alleged that the bottom and top parts of the 'safety catch' of the Valiant did not interlock. The hood of this car raised from the front, being hinged at the rear near the front windshield. The hood latch assembly at the front of the hood consisted of two parts: (1) a plungertype hood lock, the function of which, when engaged, was to hold the hood in a locked position; and (2) a 'safety catch' the function of which, when interlocking, was to keep the hood from coming up more than one half inch after the hood lock had been disengaged. The top part of the 'safety catch' is a circular 'eye-shaped' piece of metal while the bottom part in a piece of metal shaped like a hook. When these two parts are interlocking the hood cannot come up any higher than one half inch until the release lever on the front grill is pulled forward.

One theory of negligence alleged by Mosley was that at the time the Motor Company delivered the Valiant to him on March 8, the bottom part of the 'safety catch' on its hood latch assembly was not interlocking with the top part thereof; that such company negligently failed to discover and correct this condition before March 8; and that such failures were each proximate causes of the occurrence in question on April 23. Another theory of negligence pleaded herein by Mosley was that, even after an adjustment by the Motor Company to the Valiant's hood latch on April 3, (at which time Mosley had brought the car back to the Motor Company for a check-up complaining that the hood latch assembly was not working properly) the bottom part of the 'safety catch' was not interlocking with the top part thereof; that the Motor Company negligently failed to discover and correct this condition on April 3; and that such failures were each a proximate cause of the occurrence in question on April 23, with the consequential damages described.

Twenty special issues were submitted to the jury that found, in summary, that when the car was delivered to Mosley on March 8, the bottom part of the safety catch of its hood latch assembly was not interlocking with the top part of the safety catch so as to hold the hood down; that the Motor Company failed to discover such condition in said safety catch before March 8; that such failure was negligence; that such failure was the proximate cause of the occurrence in question; that the Motor Company failed to correct the condition of the safety catch before March 8 and that such was negligence and the proximate cause of the accident. That on April 3, defendant Motor Company made an adjustment in the hood latch assembly on the Mosley's Valiant. That after the adjustment in the hood latch assembly was made, the bottom part of the safety catch was not interlocking with the top part of the safety catch so as to hold the hood down; that the Motor Company failed to discover this condition in the safety catch on April 3; that such failure was negligence and a proximate cause of the accident; that the Motor Company failed to correct the condition of the safety catch on April 3; that such failure was negligence and the proximate cause of the accident; that the accident in question was not the result of an unavoidable accident. The jury found the damages to be $9,147.95.

The Trial Court entered a judgment in favor of Mosley on the jury's verdict.

We affirm the judgment of the Trial Court.

The appellant Motor Company is before this Court urging that the Trial Court erred in submitting special issues inquiring about the condition of the hood latch assembly on March 8, 1961 and on April 3, 1961 since the occurrence upon which the suit was based happened on April 23, 1961; that the issues submitted were evidentiary issues and not ultimate issues, the ultimate issue being the condition of the hood latch assembly on April 23, 1961 the date of the accident. Appellants also raise a point of error as to the argument to the jury made by Mosley's counsel.

Mosley contends that the safety latch, described above, never engaged properly and presented a witness who testified that the procedure the Motor Company followed in attempting to adjust the safety catch constituted negligence. There was also testimony that the bottom part of the safety catch or hook part had originally been painted white, the same color of the car; that little or none of the paint had been rubbed off or scarred after the accident; that this tended to show that the hook had not been engaging with the 'eye' counterpart; that similar model cars with less age and use whose hood safety catches were working properly had the hook part of the safety catches that showed scarred paint and areas where the paint was removed due to friction.

The Motor Company presented a mechanic as a witness who testified that after the accident, the hook part of the safety catch had been completely straightened out. That this tended to show that the safety catch was working at the time of the accident on April 23 and that some unusual force had caused the hood to be torn loose from this mooring. This evidence was presented by a mechanic who allegedly repaired the safety latch after the accident in question.

There was evidence that gusts of wind were prevalent on the day of the accident.

Thus there was a direct conflict in the testimony as to whether the safety latch was working on April 23.

The appellant Motor Company maintains that while the evidence presented by Mosley as to the condition of the safety latch on both March 8 and April 3 would be evidence and have a bearing on the possible condition of the latch on April 23, the ultimate fact was the condition of the safety catch on April 23 and that an issue as to the condition of the latch on April 23 should have been submitted. That the Trial Court's failure to submit this issue deprived the Motor Company of having the jury pass on what they contend is the ultimate fact issue presented in the lawsuit. That Mosley should have presented such issue as part of his case. That issue was joined not on the questions of defective condition on March 8 or April 3 but on the question of defective condition on April 23, and it is that ultimate issue that should have been answered by the jury.

Rule 279, Texas Rules of Civil Procedure, states that where a case is submitted on special issues, the court shall submit the controlling issues made by the written pleadings and the evidence. The rule further provides that a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. Matthews v. General Accident Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251.

Simmons' answer consists of certain special exceptions to Mosley's petition not pertinent here, a general denial and the defense of unavoidable accident.

In order for Mosley to have been charged with the burden of submitting the issue Simmons complains was omitted, the issue would have to be the controlling or an ultimate issue of the case (as Simmons contends) or, an inferential-rebuttal issue as described by Professor Hodges in his treatise on Special Issue Submission in Texas. The latter theory would fail here as such matter in addition to proof must have been plead. See Hodges, cited above, Sec. 32, p. 90 and the cases there cited. Also see Rice v. Thompson, Tex.Civ.App., 239 S.W.2d 137, error ref., n. r. e. Nor is the...