Southland Supply Co. v. Gebhart

• Decision Date: 11 February 1969
• Docket Number: No. 7933,7933
• Citation: 439 S.W.2d 393
• Parties: SOUTHLAND SUPPLY COMPANY and Bart Hawkins, Appellants, v. Alfred GEBHART and Patsy Ann Gebhart, Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 393

439 S.W.2d 393

SOUTHLAND SUPPLY COMPANY and Bart Hawkins, Appellants, v. Alfred GEBHART and Patsy Ann Gebhart, Appellees.

No. 7933.

Court of Civil Appeals of Texas.

Texarkana.

Feb. 11, 1969.

Larry Starr, Kenley, Boyland, Hawthorn & Starr, Longview, for appellants.

Rex Houston, Gordon R. Wellborn & Rex Houston, Henderson, for appellees.

FANNING, Justice.

A venue case tried to the court without a jury. Involved is the application of Subd. 9a of Art. 1995, V.A.T.S., to an accident which resulted after Bart Hawkins, an employee acting within the scope of his employment with Southland Supply Company, stopped the truck of his employer in the westbound lane of East Main Street in Henderson, Rusk County, Texas, and the car driven by Patsy Ann Gebhart struck the rear of the stopped truck, causing personal injuries to Miss Gebhart. The trial court, after hearing the evidence adduced, overruled appellants' plea of privilege to be sued in Smith County, Texas. Appellants have appealed.

Appellants present two points on appeal wherein they contend to the effect that there was 'no evidence' and 'insufficient evidence' to support the trial court's overruling of appellants' plea of privilege and that such action was 'contrary to the overwhelming weight and preponderance of the evidence.'

For a comprehensive discussion of the law applicable to the determination of such character of points see Chief Justice Calvert's article, "No Evidence and Insufficient Evidence' Points of Error', 38 Tex. Law Rev., No. 4, p. 361.

Plaintiffs' pleadings with respect to negligence and proximate cause were in part as follows:

'Hawkins for some reason had stopped his truck in the lane of traffic on East Main Street which was being used by Patsy Ann. In stopping his truck on the heavily traveled street, Hawkins was guilty of negligence in one or more respects, including his failure to keep a proper lookout for traffic to his rear, failure to give a proper signal of his intention to stop or back up, failure to place a flagman or other signaling device to the rear of the truck and to signal his intention to block the street, and illegally backing his truck on a publicly traveled street. These negligent acts and omissions proximately caused the collision for which damages are sought in this suit.'

The trial court overruled appellant's plea without making findings of fact or conclusions of law which is proper. Rule 385(e), Texas Rules of Civil Procedure.

Where a case is tried without a jury, and no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory, and every issue sufficiently raised by the testimony must be resolved in support of the judgment. 3--B Tex.Jur., § 873, p . 278; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929 .

Of course the issues of negligence and proximate cause can be proved by circumstantial evidence. Big Three Welding Equipment Company v. Reeh, Tex.Civ.App., 301 S.W.2d 504.

Viewing the evidence most favorably to the judgment as we must with reference to the 'no evidence' questions, we state the facts in this light as follows: The collision in question occurred about noon on December 20, 1967, on East Main Street, a heavily traveled street, in Henderson, Rusk County, Texas. Hawkins, in the course of his employment with Southland, was making a delivery to City Plumbing Company in Henderson, Texas. East Main Street in said city has two lanes of traffic, one going east and one going west. Hawkins stopped his truck in the westbound lane of said street, with the intention of backing across the eastbound lane into City Plumbing Company located on the south side of East Main. His stated purpose for preparing to take what he admitted to be an unusual driving maneuver was for his own convenience in unloading the truck. Plaintiff's Exhibits 1 and 2 show the scene and location in question, and we think it appears from the photographs that there was room for Mr. Hawkins to turn and drive in forward to City Plumbing Company. Hawkins had just proceeded over a small hill or 'rise' in the Street and around a slight curve, and stopped in the road without giving any visible signal, according to the testimony of Miss Gebhart. (Mr. Hawkins' version of giving signals was different from Miss Gebhart's, but the trial court apparently believed Miss Gebhart's version instead of Mr. Hawkins' version.)

Mr. Hawkins testified that he had seen the Gebhart car in his rear view mirror some 100 yards or so before he stopped. He did not see the Gebhart car again until after the collision. We quote from Hawkins' testimony in part as follows:

'Q. Then my question is did you watch her during that 100 yards?

A. No.

Q. The last time you saw her was about a hundred yards back?

A. Yes, sir.

Q. You did nothing further other than just sit there?

A. Right.

Q. And you of course weren't giving any kind of signal at all that you were going to back up or turn or anything, you just simply had on flashers, is that right?

A. That's right.

Q. You had no traffic coming toward you?

A. No, sir.

Q. There was absolutely nothing to have kept you as far as traffic is concerned from pulling forward and driving at an angle to the left across the other lane of traffic, was there?

A. No. There was no traffic coming, right.

Q. There was no traffic coming.

A. Unh-uh.

Q. There is a place over on the side of this street, on either side of it, where vehicles can park, isn't there?

A. Right.'

Mr. Hawkins also stated that the usual way to get into such a place as City Plumbing Company was to:

'A. Well, you put on your signals and pull up, and if there is no cars coming, if there are, then you pull over, pull up and stop, and they usually wait or go around you or something.'

Further when asked as to what he would have done had there been ten cars behind him, Mr. Hawkins testified:

'Q. Suppose there had been ten cars behind you, what would you have done?

A. Probably circled the block and came black.'

We hold that there was evidence of probative force to support the trial court's implied findings of negligence and proximate cause in support of its judgment, and that the same was sufficient.

On the question of failure to keep a proper lookout to the rear, under the circumstances in the fact situation in the case at bar, the following authorities are deemed to be pertinent: C. & R. Transport Inc. v. Campbell, Tex.Sup.Ct., 406 S.W.2d 191; Lesage v. Smith, Tex.Civ.App., 145 S.W.2d 308, wr. dism. judgm. corr.; 7 Tex.Jur.2d p. 632; Riles v. Reichard, Tex.Civ.App., 366 S.W.2d 655, no writ; Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116, wr. ref., n.r.e.; Langham v. Talbott, Tex.Civ.App., 211 S.W.2d 987, wr. ref., n.r.e.

According to the testimony of Miss Gebhart, Mr. Hawkins failed to put on his flashers as testified to by him, and failed to signal his intention to stop and block the road. The trial court, as the trier of the facts, was the judge of the credibility of the witnesses and of the weight to be given their testimony, and the trial court apparently believed Miss Gebhart's testimony with reference to Mr. Hawkins' stopping and failing to give any character of signal. Under Miss Gebhart's testimony, Hawkins was guilty of negligence in stopping without giving any signal of any character and of blocking the street in front of her.

In connection with the negligence of Hawkins in failing to keep a proper lookout to his rear, his failure to give signas of his stopping and blocking the road in front of Miss Gebhart, we quote from Jones v. Downey, supra, ...