South Texas Coaches v. Woodard

• Decision Date: 18 November 1937
• Docket Number: No. 10382.,10382.
• Citation: 123 S.W.2d 395
• Parties: SOUTH TEXAS COACHES, Inc., v. WOODARD et al.
• Court: Texas Court of Appeals

123 S.W.2d 395

SOUTH TEXAS COACHES, Inc., v. WOODARD et al.

No. 10382.

Court of Civil Appeals of Texas. Galveston.

November 18, 1937.

Rehearing Granted November 10, 1938.

Further Rehearing Denied January 6, 1939.

Appeal from District Court, Anderson County; Ben F. Dent, Judge.

Action by Mrs. Edna Woodard and others against South Texas Coaches, Inc., for the death of plaintiffs' husband and father in an automobile collision. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Ben Greenwood, of Palestine, Price & Christopher, of Fort Worth, and Robertson, Leachman, Payne, Gardere & Lancaster and Gus M. Hodges, all of Dallas, for appellant.

J. D. Pickett, of Palestine, for appellees.

GRAVES, Justice.

This cause grew out of a collision between two autos on the Frankston and Palestine highway in Anderson County on the night of September 9, 1934, the one— his own Chevrolet coach—being driven north at 45 miles per hour by Mr. C. M. Woodard, the appellees' husband and father, who was so critically injured thereby that he died next day; the other—a wrecker belonging to appellant—going south at 20 miles per hour, under operation of one of its employees, and towing one of its disabled buses that was being operated by another employee in its business of transporting people for hire over the public highways of the State, with two such passengers on board.

This appeal therein by the Coaches, Inc., is from a judgment of the court below for $10,335 against it, and in favor of the appellees as damages resulting to them from Mr. Woodard's death, entered upon a jury's verdict finding the appellant's operator of the wrecker at the time to have been negligent in these particulars:

(1) In operating it so that parts of the wrecker were over, beyond, and to the left of the center of the highway, just prior to and at the time of the collision;

(2) That prior to the time the deceased was struck, the employee of the appellant in charge of the wrecker discovered and realized that Mr. Woodard was in a perilous position, so discovering and realizing his peril, in time to have prevented the collision and injury to the deceased by the use of means at hand consistent with the safety of the wrecker and the bus attached to it, together with their human burden; but that the operator failed to use such means at hand to prevent striking the deceased, in that he neglected either to pull the wrecker far enough to the right to avert the collision, or to apply his brakes as soon as he discovered deceased's peril.

The briefs and record brought to this court are inexcusably long, imposing not only inescapable drudgery upon it, but rendering impossible a pursuit here into the attenuated details to which the discussion has been extended.

After the affirmative visitation upon the appellant of the enumerated acts of negligence upon which the judgment was so predicated, the jury further found the collision not to have been the result of an unavoidable accident, and that the deceased was not guilty of any negligent act or omission which proximately contributed to the collision; in so far as the assignments attack any portion of the comprehensive verdict so returned (there having been some 60 special issues submitted to it) as lacking sufficient support in the evidence, they are each and all overruled; this court has painstakingly followed them step by step through two volumes of a statement of facts, comprising an aggregate of 560 pages, with the resulting conclusion that, at most, there were presented only such conflicts in testimony with reference to the detailed inquiries made as it was the jury's exclusive province to resolve; this is especially true as affected the closer questions raised, such as the respective averments of negligence on each side, and the application of the doctrine of discovered peril as concerned the conduct of the operator of the wrecker from the moment he saw the deceased's car coming over the hill from the opposite direction.

The fatal accident happened at night, Mr. Woodard was alone in his car, and the only eye-witnesses to the tragedy were appellant's respective drivers of the wrecker and the bus, and two negro passengers— one a preacher, and the other a boy who also was an employee of the appellant; neither of these two passengers was called to testify, but it was shown that immediately after the accident several automobiles arrived on the scene, all of them containing local people (three of them sheriff's deputies of Anderson County), acquainted with the highway at that place, except one bus-full of baseball players who were strangers from an adjoining county; a great number of these people were witnesses on this trial, all of them testifying that when they arrived on the scene deceased's car and the wrecker were securely locked together on the east side of the highway, running north and south at that point; that the two cars were out in the ditch on that side, the bus being still fastened on to the wrecker and standing right behind in line with it; that deceased's car was off the highway on his rightful side thereof—considering the direction he was going—while appellant's wrecker was off the highway on the left-hand, or wrongful side thereof, considering the direction it had been traveling pictures of the scene also were made after the cars had been removed, and these fully verified the stated testimony of these witnesses as to the relative positions of the cars and the condition of the highway, as just recited.

It would serve no useful purpose to further detail, nor attempt even a resume, of the great body of the evidence received upon these features, but it is enough to find, as this court does, that the jury were not without warrant for the verdict rendered.

Aside from contentions that the evidence was insufficient to support the verdict, appellant first complains of what the court found was an inadvertent reading by appellees' counsel before the jury of their interrogatory No. 13 in a deposition they had taken from the witness, R. C. Bowen, as follows: "State whether or not South Texas Coaches, Inc., had, on the 9th day of September, A.D. 1934, public liability and property damage policy on file with the Motor Transportation Division of the Railroad Commission of Texas, in which South Texas Coaches, Inc., is named as an assured."

It is insisted that the mere reading of this inquiry, though inadvertent as the court found, was immaterial, highly inflammatory, and prejudicial to the appellant, in that it informed the jury that appellant was protected by insurance, hence was reversible error; this court overrules the point under the general conclusion that the error, if any at all in the matter, was purely technical rather than substantial, that the evidence and the verdict otherwise negative the existence of any prejudice resulting to the appellant from such an inadvertent if not accidental proceeding, and that it waived any right to complain of such reading by failing to make a seasonable objection to it; and finally, that its own evidence, to the effect that the wrecker involved was not in fact covered by insurance, constituted an estoppel against it to urge the matter.

As recited supra, the trial court in qualifying the bill of exceptions brought up in this connection, not only found that the reading of this inquiry had been inadvertent upon the part of appellees' counsel, but also that the deposition in which it appeared had been on file in the court about six months prior to such reading of that question therein by counsel, opposing counsel presumably having copies of the questions, and that no objection had ever been before made to it; that immediately upon its being so read, objection was made to it for the first time by appellant's counsel, whereupon the jury had been retired, the question withdrawn, and the answer withheld.

Not only so, but appellant's bill of exceptions No. 3 shows further that on motion for new trial it proved by the testimony of the same witness, R. C. Bowen, who was its President, and L. M. Waite, manager of the Insurance Company involved, that as a matter of fact the appellant's wrecker had not been covered by insurance at all.

Wherefore, under these authorities, it is held that in the circumstances thus appearing no reversible error was involved. Tex. Jur., Vol. 33, p. 280; Jimmie Guest Motor Co. v. Olcott, Tex.Civ.App., 26 S.W.2d, 373, error dismissed; D. & H. Truck Line v. Lavallee, Tex.Civ.App., 7 S.W.2d 661, error refused; Horton v. Benson, Tex.Civ. App., 266 S.W. 213, affirmed, Tex.Com. App., 277 S.W. 1050; Carter-Mullaly Transfer Co. v. Bustos, Tex.Civ.App., 187 S.W. 396, error refused; Russell v. Bailey, Tex.Civ.App., 290 S.W. 1108, error dismissed; Levy v. Rogers, Tex.Civ.App., 75 S.W.2d 304; Kress & Co. v. Dyer, Tex. Civ.App., 49 S.W.2d 986; Texas Cities Gas Co. v. Ellis, Tex.Civ.App., 63 S.W.2d 717; Burnett v. Anderson, Tex.Civ.App., 207 S.W. 540; El Paso Electric R. Co. v. Shaklee, Tex.Civ.App., 138 S.W. 188, error refused; Cooper & Jones v. Hall, Tex.Civ. App., 168 S.W. 465; El Paso Electric Ry. Co. v. Cowan, Tex.Civ.App., 257 S.W. 941; El Paso Electric Co. v. Perkins, Tex. Civ.App., 292 S.W. 935, error refused; Northern Tex. Trac. Co. v. Woodall, Tex. Civ.App., 294 S.W. 873; T. B. Allen & Co. v. Shook, Tex.Civ.App., 160 S.W. 1091; Rule 62A, Courts of Civil Appeals; 64 C.J. p. 107, sec. 111; Thompson v. Collins, 139 Wash. 401, 247 P. 458; 4 C. J. p. 912, sec. 2879, note 77.

It is next urged that the court erred in defining to the jury the term "contributory-negligence", when that term was not otherwise used at any place in the court's charge; it being argued that the definition was surplusage, unnecessary, as not tending to assist the jury in answering the issues, hence its inclusion at all was prejudicial error; further, the definition so given was an improper one, being confusing in form, in that it required the finding of...