Texas Co. v. Betterton

• Decision Date: 25 January 1933
• Docket Number: No. 2287.,2287.
• Citation: 56 S.W.2d 663
• Parties: TEXAS CO. v. BETTERTON et al.
• Court: Texas Court of Appeals

Page 663

56 S.W.2d 663

TEXAS CO. v. BETTERTON et al.

No. 2287.

Court of Civil Appeals of Texas. Beaumont.

January 25, 1933.

Rehearing Denied February 1, 1933.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Mrs. Amelia Betterton against the Texas Company, in which Leslie Betterton and others intervened. From the judgment for plaintiff and named intervener, defendant appeals.

Affirmed.

Lamar Cecil, of Beaumont, and Hunt & Hunt and H. G. Butts, all of Houston, for appellant.

C. A. Lord, of Beaumont, Xavier Christ, of Pt. Arthur, and B. C. Johnson, of Houston, for appellees.

WALKER, C. J.

Appellee Mrs. Amelia Betterton brought this suit against appellant, the Texas Company, for damages for negligently killing her husband, A. P. Betterton. Leslie Betterton intervened, claiming damages as a dependent minor son of the deceased, A. P. Betterton. Other children intervened, but they went out of the case on the verdict of the jury, and nothing is before us regarding their interests.

A. P. Betterton was killed on or about the 30th day of May, 1931, in a collision on West Sixteenth street in the city of Port Arthur between an automobile, which Betterton was driving, and one of appellant's trucks, being driven at the time by Knockout Brown, one of its servants. Just prior to and at the time of the collision, Betterton was driving his automobile east on West Sixteenth street, and appellant's truck was being driven west. Ahead of Betterton, just before the time of the collision, were parked two automobiles on the right-hand side of the street. As he drove up to these parked cars, he turned to his left and collided with appellant's truck. A short distance behind appellant's truck, driving in the same direction with the truck, was another car. The principal grounds of negligence pleaded by appellees were (a) "at the time of the collision" appellant's truck was being driven at "a greater rate of speed than fifteen miles per hour"; and (b) "at the time of the collision" appellant's truck was being driven partly on the left-hand side of the street. Appellant's answer was by general and special demurrers, general denial, and by special pleas of contributory negligence. The jury convicted appellant of negligence on the two issues just stated, and found further that each of these grounds of negligence was a proximate cause of Betterton's death. The verdict was in favor of appellees on all issues of contributory negligence submitted to the jury. Damages in favor of Mrs. Betterton were assessed at $10,000, and in favor of the minor, Leslie Betterton, at $2,000, and judgment was accordingly entered in their favor, from which this appeal was duly prosecuted.

Opinion.

Appellant insists that the two issues submitted to the jury (a) as to whether or not its truck, at the time of the collision, was being driven at a greater rate of speed than fifteen miles per hour, and (b) as to whether or not, at the time of the collision, it was being operated on the left-hand side of the street, submitted only evidentiary issues and not determinative issues, and that the answers to these questions, with the supporting findings on the issue of proximate cause, were insufficient to support the judgment in favor of the surviving wife and the minor son, appellees herein. Appellant does not contend that these issues were not raised by the evidence, but only that the jury's answer thereto did not convict it of actionable negligence. If we understand appellant's argument, as it relates to the rate of speed, the point is made that the motor vehicles came together in a head-on collision and were not "passing" each other at the time of the collision. Article 794 of the Penal Code is as follows: "All operators of motor vehicles in passing each other on the public highways shall slow down their speed to fifteen miles per hour."

We do not believe appellant has correctly construed this article. The motor vehicles came together in a head-on collision. The evidence raised the issue that they were both in motion and were attempting to pass each other at the time of the collision. In Davis v. Estes, 44 S.W.(2d) 952, 954, the Commission of Appeals held that these facts invoked the provisions of article 794. It was there said: "The jury found that plaintiff in error, when attempting to pass the car driven by defendant in error, was traveling at a rate of speed in excess of 15 miles per hour. This finding rendered him guilty of negligence per se; hence it was clearly erroneous for the trial court to permit the jury to determine whether such act was negligence. Railway Co. v. Wilson, 60 Tex. 142; T. & P. Ry. Co. v. Baker (Tex. Com. App.) 215 S. W. 556; Hess v. Denman Lbr. Co. (Tex. Civ. App.) 218 S. W. 162." (Italics ours.)

As appellant's truck, under the verdict of the jury, was being driven at a greater rate of speed than fifteen miles at the time of the collision, negligence followed as a matter of law. Davis v. Estes, supra. On this issue the court, in West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, 175, said:

"Conceding the facts to be that at the time of the collision the appellant's coach was proceeding at a speed in excess of 15 miles per hour, that would clearly make against the appellant a case of negligence per se under the above article, and nothing would remain for the jury to pass upon, except the determination of whether such speed at such time and place proximately caused the death of John Madi. Exceeding the statutory rate of speed upon the highway is unquestionably negligence per se.

"* * * There is nothing vague or uncertain about this statute, and by its provisions it is negligence per se for the operator of a motor vehicle to pass an approaching one at a rate of speed in excess of 15 miles per hour. Upon the preceding issues the jury has found against the appellant, and we do not believe the complaint urged against their submission well founded."

That case was affirmed by the Supreme Court, 26 S.W.(2d) 199. See, also, Orchin v. Fort Worth Poultry & Egg Co. (Tex. Civ. App.) 43 S.W.(2d) 308, and 5 Tex. Jur. 719.

Subdivision (A), of article 801, reads as follows: "The driver or operator of any vehicle in or upon any public highway wherever practicable shall travel upon the right hand side of such highway. Two vehicles which are passing each other in opposite directions shall have the right of way, and no other vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles. On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead."

Under the provisions of this statute, the finding of the jury that appellant's truck was being driven partly on the left-hand side of the street convicted it of negligence as a matter of law. Scott v. Carlos (Tex. Civ. App.) 13 S.W.(2d) 957; Shaver v. Mason (Tex. Civ. App.) 13 S.W.(2d) 450; 5 Tex. Jur. 714. In support of its contention that the act of driving its truck on the left-hand side of the street did not convict it of negligence as a matter of law, appellant advances the following argument: "In order to bring the act of The Texas Company truck in occupying any part of the left hand side of the highway within this statute so as to make such act a negligent act per se, the jury would also have to find that it was practicable for the driver to drive on the right hand side, or that it was impracticable for the driver to occupy such left part of the highway as he did and would also have to find that the road on the left hand side of such highway which he occupied was not clear and unobstructed for a distance of fifty yards ahead. Since the statute is a penal statute and prescribes that at certain times the right hand side of the highway may be used and the left hand side of the highway may be used, we think that it was necessary that the jury also find that it was not practicable for The Texas Company truck driver to use the part of the left hand side of the highway which he used and that such part which he did use was not clear and not unobstructed for a distance of fifty yards ahead. We earnestly contend that it was necessary for the jury to find these corollary facts before a finding that the Texas Company truck used a part of the left hand side of the highway could be a negligent act per se, or could be an act within the terms of Section `A' of Article 801 of the Penal Code."

No exceptions were reserved by appellant as to the manner or form of submitting this issue to the jury. The unsubmitted issues, suggested by appellant's argument, were merely supplemental and incidental to the issue actually submitted. The evidence raised in favor of the judgment all the suggested issues. Under article 2190 all issues not submitted and not requested are deemed as found by the court in such manner as to support the judgment, where there is evidence to sustain such finding, when such issues are "supplemental or incidental to, and which support, the issues of fact which were submitted and found by the jury, and upon which the judgment is based." Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

After appellees closed their case and rested, and the defendant had closed its case and rested, the court permitted appellees to reopen their case and to adduce testimony, not "in rebuttal," but primary testimony upon the main issues. We overrule appellant's contention that this ruling was error. There is no suggestion of abuse of discretion by the court in this ruling, nor is there any suggestion of injury to appellant. The point is one merely of abstract law,...