Smith v. Chase

• Decision Date: 17 June 1966
• Docket Number: No. 16725,16725
• Citation: 405 S.W.2d 450
• Parties: Virginia R. SMITH et al., Appellants, v. Marshall CHASE, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 450

405 S.W.2d 450

Virginia R. SMITH et al., Appellants, v. Marshall CHASE, Appellee.

No. 16725.

Court of Civil Appeals of Texas Dallas.

June 17, 1966.

Dissenting Opinion June 21, 1966.

Rehearing Denied July 15, 1966.

John D. Griggs, Dallas, for appellant.

Strasburger, Price, Kelton, Miller & Martin and J. Mike Joplin, Dallas, for appellee.

WILLIAMS, Justice.

This is an action for personal injuries and property damage brought by Virginia R. Smith and husband, Willie A. Smith, against Marshall Chase growing out of an automobile collision which occurred on May 27, 1964 at an intersection of two streets in the City of Dallas, Texas. Mrs. Smith alleged, and the evidence supported such allegation, that she brought her automobile to a stop at a stop sign before entering Lemmon Avenue and then proceeded across said street and had almost accomplished said crossing when her automobile was struck in the right rear portion by the automobile being driven on Lemmon Avenue by Mr. Chase. The trial pleadings of the parties contained numerous allegations of both primary and contributory negligence.

The case proceeded to trial before a court and a jury which rendered findings to the special issues submitted to it by the court substantially as follows: (1) that the defendant Chase did not fail to keep a proper lookout; (3) that Chase did not fail to make a proper application of the brakes on his automobile; (5) that Chase was not driving his automobile at an excessive speed; (7) that Chase's failure to turn his automobile to the left immediately before the collision was not negligence; (9) that Chase's actions in changing from the inside to the outside lane of Lemmon Avenue was not negligence; (12) that Virginia Smith had the right of way on the occasion in question ('right of way' being defined as the privilege of the immediate use of the highway); (13) that Chase failed to yield the right of way to Virginia Smith; (14) that such failure on Chase's part was negligence; (14--A) that such negligence and failure was a proximate cause of the occurrence in question; (17) that Virginia Smith did not fail to keep a proper lookout on the occasion in question; (19) that Virginia Smith failed to apply her brakes on the occasion in question; (20) that such failure on her part was not negligence nor a proximate cause of the occurrence in question; (22) that Virginia Smith was negligent in attempting to cross Lemmon Avenue under the traffic conditions then existing, and (23) that such negligence was a proximate cause of the occurrence in question; (24) that the occurrence was not the result of an unavoidable accident. The remaining issues had to do with the amount of damages which the jury found to be $1,344.87. Motions were duly and timely made by plaintiffs to set aside and disregard the jury findings of Special Issues 22 and 23 and to render judgment for plaintiffs upon the verdict but same were overruled. Judgment was rendered denying plaintiffs any recovery and this appeal follows.

Inasmuch as Special Issues 22 and 23 as submitted to the jury in this case form the focal point of each of appellants' points on appeal we deem it desirable to quote both issues, as follows:

'SPECIAL ISSUE NO. 22

'Do you find from a preponderance of the evidence that Virginia Smith was negligent in attempting to cross Lemmon Avenue under the traffic conditions then existing?

'Answer Yes or No.

'Answer: Yes.

'If you have answered Special Issue No. 22 'Yes', then you will answer Special Issue No. 23; otherwise you will not answer same.

'SPECIAL ISSUE NO. 23

'Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the occurrence in question?

'Answer Yes or No.

'Answer: Yes.'

Appellants' first point of error complains of the submission of Special Issue No. 22, and its ancillary Issue No. 23, because they contend, having been found to have the right of way, there was no legal duty upon Mrs. Smith not to cross the intersection under the circumstances existing. We cannot agree with appellants and overrule their first point.

It is well established in the law of this state that the rule relating to right of way is not considered absolute but relative. Our Supreme Court, as well as numerous Courts of Civil Appeals, has held that a motorist who claims the statutory right of way is legally obligated to exercise such right with proper regard for his own safety and the safety of others. McWilliams v. Muse, 157 Tex. 109, 330 S.W.2d 643; Lewis v. Martin, Civ.App., 120 S.W.2d 910 (Wr. ref.); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Babb v. Young, Civ.App., 348 S.W.2d 660; Bailey v. Tishlias, Civ.App., 348 S . W.2d 220 (wr. ref., n.r.e.).

In their second group of points, two through five inclusive, appellants complain of the submission of Special Issues Nos. 22 and 23 because the same are general and global and therefore violate the rule requiring the submission of specific questions of fact. Appropriate objections were levelled against the submission of these issues in advance of submitting the case to the jury.

Having carefully considered the pleadings of the parties as well as the charge of the court in its entirety, all in the light of the evidence adduced, we are in accord with appellants' contention that Special Issue No. 22 constitutes a general or global issue, encompassing various elements of specific fact, and therefore was improperly given to the jury.

The basic rule relating to the submission of special issues is Rule 279, Vernon's Texas Rules of Civil Procedure, which is a mandate to trial judges to submit only the controlling issues made by the written pleadings and the evidence. Much has been said and written on the subject of broad, general or 'global' issues as opposed to narrow and specific issues. Our Supreme Court in the recent case of Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644, in striking down the practice of submitting the general issue of proper control in a negligence case, reviewed the question here presented in detail and announced the present law, as follows:

'When a case is submitted on special issues, the court is required to give 'the controlling issues made by the written pleadings and the evidence.' Rule 279, Texas Rules of Civil Procedure. As pointed out in the article cited above, this Rule has been given one meaning in ngeligence actions and a somewhat different meaning in other types of cases. Reasonably broad issues embracing several distinct and essential elements of a cause of action or defense have been upheld in a number of non-negligence suits. Even in negligence cases there are a few more or less general inquiries which may be submitted without fragmentation into their factual components. Examples are proper lookout, Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, Traywick v. Goodrich, Tex.Sup., 364 S.W.2d 190; attractive nuisance, Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587; and discovered peril, Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112. It is nevertheless well settled that a general rule and when the question is properly raised, special issues relating to either primary or contributory negligence should be restricted to specific acts and omissions which have been raised by the pleadings and evidence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613.'

Justice Norvell, in a concurring opinion, while differing basically with the majority opinion condemning the general issue of 'proper control' yet agrees that where specific issues, making up the issue of proper control, have been given that the general issue should not be given. Thus, he said:

'So far as the judgment in this particular case is concerned I concur in the Court's action in affirming the judgment of the Court of Civil Appeals which reverses the judgment of the trial court. This, for the reason that at least two important elements of the 'lack of proper control' issue were specifically submitted, namely, driving the truck with improper brakes and a failure to properly steer such truck when collision was imminent. While, in my opinion, a party should be allowed to submit the broad 'lack of proper control' issue, he should no also be permitted to submit specific issues inquiring as to the various elements encompassed within the concept of proper control. This would be obviously unfair. A party would have an opportunity to prevail upon the answers to specific issues and failing in this, contend that nevertheless he was entitled to prevail upon an unsubmitted element of lack of proper control should he receive a favorable answer to such broader issue. A litigant must either go global or specific. He cannot go both ways.'

It is significant that in the case under consideration specific acts which went to make up the question of 'traffic conditions then existing' were submitted to the jury and, incidentally, found in favor of appellants. The question of the court to the jury inquiring whether Mrs. Smith was negligent in crossing the street at the time and on the occasion in question and under the circumstances then existing was undoubtedly a broad and global submission which permitted the jury to take into consideration any fact or circumstance which they might consider to be pertinent or material to the issue. Such question encompasses the elements of speed, brakes, lookout and other specific matters which go to constitute the 'condition then existing.' As stated by Justice Norvell in Barclay a litigant should be allowed to go either global or specific but he cannot go both ways. The court in this instance permitted appellee Chase to have two bites at the apple, one general and several specific. He failed in his effort to secure a jury finding of specific acts of negligence on the part of Mrs. Smith but obtained...