Structural Metals, Inc. v. Impson

• Decision Date: 22 April 1971
• Docket Number: No. 591,591
• Citation: 469 S.W.2d 261
• Parties: STRUCTURAL METALS, INC. et al. v. Grover IMPSON et al.
• Court: Texas Court of Appeals

Page 261

469 S.W.2d 261

STRUCTURAL METALS, INC. et al. v. Grover IMPSON et al.

No. 591.

Court of Civil Appeals of Texas,

Corpus Christi.

April 22, 1971.

Rehearing Denied June 22, 1971.

Keys, Russell, Watson & Seaman, M. W. Meredith, Jr., Corpus Christi, for appellants.

Edwards & DeAnda, William R. Edwards, Joe Longley, Corpus Christi, for appellees.

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that appellees recover from appellants the aggregate sum of $73,930.45. Appellants are Structural Metals, Inc., and Joe Polanco, defendants below. Appellees are Mrs. Ida LeBourveau, joined by her husband Warren N. LeBourveau, and Grover Impson, individually, and Independent Executor of the Estate of Ivah Impson, deceased, plaintiffs below.

The causes of action asserted by appellees arose out of a collision near Tynan, Texas on November 1, 1968, about 8 o'clock P.M ., between a truck being driven by Joe Polanco belonging to Structural Metals, Inc., and a car being driven by one J. T. Hall in which Mr. and Mrs. Grover Impson and their daughter, Mrs. Ida Frances LeBourveau, were riding as passengers in the rear seat. Shortly prior to the collision both vehicles were traveling in the same direction, generally northeastward, on State Highway 359. Just outside the town of Tynan, Polanco was driving the Structual Metals Truck on its left hand side of the highway and was overtaking and attempting to pass the car driven by Hall, when the car turned to the left in front of the truck toward Farm Road 796 which ran generally in a northwesterly direction and made a 'T' intersection with Highway 359 near the point of the collision. Mrs. Impson was killed and Mr. Impson and Mrs. LeBourveau suffered serious injuries as a result of the accident. Hall is not a party to this suit.

The trial court submitted 10 special issues to the jury. Issues 1 through 6 submitted three separate theories of liability relied on by appellees. Issues 1 and 2 inquired whether Joe Polanco drove his vehicle on the left side of the roadway when approaching within 100 feet of the intersection in question and whether such action was a proximate cause of the occurrence in question. Both of these issues were answered favorably to appellees. The jury refused to find in answer to issue 3 that Polanco failed to keep a proper lookout, and issue number 4 involving proximate cause was conditionally submitted and not answered. The jury further refused to find in answer to issue 5 that Polanco failed to give proper warning of his intention to pass the Hall vehicle, and issue 6 involving proximate cause was conditionally submitted and not answered. It thus appears that the jury answers to issues 1 and 2 furnish the only possible basis for liability of appellants to appellees. Issues 7--10 related to damages.

Appellants assert eleven points of error. We will not need to specifically discuss most of them because we have concluded that this appeal depends primarily upon disposition of appellants' point of error number one which reads as follows:

'The trial court erred in failing to submit an issue to the jury inquiring whether Joe P. Polanco's driving on the left side of the roadway, when approaching within one hundred feet of the intersection was negligence, since there was evidence of justification or excuse for the statutory violation.'

Appellees have replied to appellants' first point by their first and second counterpoints in substance as follows: (1) That the trial court correctly refused to submit an issue on excused statutory violation where such an issue was not specifically pleaded, but raised only by a general denial, and was not tried by consent of the parties, and (2) defendants presented no evidence of excused statutory violation.

We agree with appellants.

We first consider whether there was evidence legally sufficient to raise the issue of excused statutory violation. If there was none, then the question of pleading becomes immaterial. The evidence relating to the issue of excuse or justification for the statutory violation was in substance as follows. Mr. Polanco, Mrs. LeBourveau and Mr. Impson were the only three potential witnesses to the accident. The latter two, who were riding in the rear seat of the Hall car, did not know much about how it actually happened. The testimony of Joe Polanco, Jr., was in substance as follows: He was the driver of a truck belonging to Structural Metals, Inc., on November 1, 1968, when it was in a collision with an automobile being operated by Mr. J. T. Hall. Earlier the same day Polanco had passed through Tynan, on the way to Jim Hogg County. He had been on Highway 359 through Tynan some five or six times in three or four yers. He had previously seen the intersection of Farm Road 796 with Highway 359 but shortly before the accident did not recall its exact location with respect to how far it was out of the town of Tynan. Polanco was traveling about 50 to 55 miles per hour as he came into Tynan. It was dark and the truck lights were on. In Tynan, some six to seven hundred feet ahead of him, the Hall car drove on to the extreme right-hand side of Highway 359 from an intersecting street. At that point in Tynan, Highway 359 was a four-lane road. Mr. Hall drove his car some 30 to 40 miles per hour in the right-hand lane, while Mr. Polanco drove some 35 to 45 miles per hour in the inside lane. When Mr. Polanco reached the point where the solid yellow, no-passing stripe terminated, he honked his horn, put on his turn signal and pulled to the left to pass Mr. Hall's automobile. At this point, the four lanes had narrowed to two lanes, but there were improved shoulders on each side of the main highway. Mr. Polanco had increased speed to pass Mr. Hall's vehicle, and was traveling at about 50 miles per hour when Mr. Hall also started picking up speed. Mr. Polanco testified that when he pulled out to pass Mr. Hall, he could have completed passing him before reaching the intersection had Mr. Hall not started gaining speed. Mr. Hall continued his vehicle well on the right-hand side of the roadway, at least partially on the shoulder. Mr. Polanco could have passed the Hall vehicle more than 100 feet before the intersection was reached if the Hall vehicle had not speeded up after he commenced passing. When Mr. Polanco had his truck in the left lane, and was some 10 to 20 feet to the rear of the Hall vehicle, it abruptly turned left. No brake lights and no turn signals appeared on the Hall automobile. Mr. Polanco did not realize that the farm road intersection was immediately ahead until he was already less than 100 feet from it. At that time, he was preparing to pass the Hall vehicle; and when it commenced its left turn, Mr. Polanco saw the sign pointing to Farm Road 796 which made a 'T' intersection with Highway 359 at that point. Photographs in evidence reflect that the no-passing zone had ended, and that Mr. Polanco was not in a 'no-passing' zone at the time of the accident. There was no precise warning of where Farm Road 796 intersected Highway 359 except right at the intersection. Up until the moment when the Hall vehicle started its turn to the left, from its position on the extreme right-hand portion of Highway 359, without signal, Mr. Polanco had no way of realizing that Farm Road 796 went off to the left from Highway 359 at that particular point.

Defendants called B. R. Manning, Jr., as a witness. He testified that he was one of three men who were first to arrive at the scene of the accident. Headlights from both vehicles were on. In addition, the left turn signal on the truck was still working, but there was no turn signal showing on the car. The truck's headlights were on low beam.

The plaintiffs called Mr. John Bentley as an accident reconstruction witness. He prepared plaintiffs' exhibit 1, which was a diagram of the scene of the accident. Mr. Bentley computed that the truck was going 53.2 miles per hour when its brakes were applied. He had found that the car was going 21 miles per hour at collision point, and he chose a perfect arc to project back the car from point of collision to a position traveling down Highway 359. Mr. Bentley said on cross-examination that he had chosen the radius of turn for the car by starting from a position exactly in the right-hand lane of Higway 359, and not from the shoulder. He further assumed there was a constant turn with no change in the wheel from the moment the turn started. Mr. Bentley testified to what was shown by photographs, i.e., that the intersection of Farm Road 796 with Highway 359, from the direction Joe Polanco was approaching, was hidden by a house and trees in the front yard of that house. Mr. Bentley also testified that from the time Joe Polanco started reacting to the automobile's movement, there was less than two seconds until impact.

We agree with appellants that there was some evidence to raise the issue of excuse or justification in connection with Joe Polanco operating the Structural Metals truck on the left hand side of the highway under the conditions shown to exist on the occasion in question.

We next consider the question of whether the trial court correctly refused to submit an issue inquiring whether Joe Polanco's driving on the left side of the highway when approaching within 100 feet of an intersection was negligence, when the defendants filed only a general denial and did not specifically plead excused statutory violation.

In support of the contentions made by appellants under their point one they rely primarily on the cases of Phoenix Refining Co., Inc. v . Powell, 251 S.W.2d 892 (Tex.Civ.App., San Antonio, 1952, wr. ref. n.r.e.), and Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex.Sup.1966). Appellants say that the law was correctly proclaimed in Phoenix and confirmed and restated in Hammer.

In Phoenix v. Powell, supra, both Phoenix, as plaintiff, and Powell, as cross-plaintiff, sought to rcover for...