Thomason v. Ulmer

• Decision Date: 03 December 1954
• Docket Number: No. 15569,15569
• Citation: 274 S.W.2d 103
• Parties: Dewey THOMASON, Appellant, v. W. B. ULMER, Appellee.
• Court: Texas Court of Appeals

Page 103

274 S.W.2d 103

Dewey THOMASON, Appellant, v. W. B. ULMER, Appellee.

No. 15569.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 3, 1954.

H. L. Adkison, Dallas, for appellant.

Leachman, Matthews & Gardere, Fred T. Porter, and Henry D. Akin, Dallas, for appellee.

RENFRO, Justice.

Suit was brought by appellant Dewey Thomason against appellee W. B. Ulmer for damages for personal injuries resulting from an automobile accident. Appellant alleged the automobile in which he was a passenger was struck from the rear by an automobile driven by appellee.

Forty-two special issues were submitted to the jury. The jury acquitted the defendant of any act of negligence, and found that certain acts and omissions on the part of the driver of the car in which plaintiff was a passenger constituted negligence and were the proximate cause of the collision. The jury further found that plaintiff was not injured on the occasion in question.

The appeal is before us without a statement of facts. We must presume the evidence supports the findings of the jury.

Appellant's first four points of error are based on the action of the trial court in sustaining an exception to the phrase, 'in violation of Article 6701d Section 61(a) of the Revised Civil Statutes of Texas,' appearing in section (c) of paragraph III of the appellant's amended petition; and the phrase, 'in violation of Article 827a Section 8 of the Penal Code,' appearing in section (g) of paragraph III of appellant's amended petition; and in refusing to allow him to substitute, for the above quoted words, 'in violation of the law.'

One of appellee's exceptions to the above quoted statutes was that the allegation preceding the references to the statutes did not allege or set forth facts showing a violation of said statutes.

Article 6701d, Sec. 61(a), Vernon's Ann.Civ.St., reads as follows: 'The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.'

The plaintiff's petition did not allege the speed of the defendant's car or the traffic conditions upon the highway at the time. While it was not necessary for the plaintiff to plead the statute in haec verba, it was necessary for him, in the face of the exceptions, to plead the particulars in which it was claimed that defendant had violated the statute. The pleading was no more than a mere conclusion that the defendant was operating his car in violation of the cited statute. The attempt to substitute 'in violation of the law' for 'in violation of Article 6701d Section 61(a)' did not supply the missing details.

In paragraph III, section (g), the plaintiff plead that the defendant was driving his automobile at a rate of speed greater than an ordinary prudent person would have driven the car under the same or similar circumstances, in violation of Article 827a, Section 8 of Vernon's Penal Code of Texas.

The above Penal Code is composed of eight paragraphs. The plaintiff failed to plead in what particulars the cited Penal Code had been violated.

The trial court did not deny the plaintiff the right to supply the missing particulars by amendment. The only portion of his pleading stricken was 'in violation of Article 6701d Section 61(a)' and 'in violation of Article 827a Section 8 of the Penal Code of Texas'. Plaintiff was not restricted in introducing evidence. The issue as to whether or not the defendant followed the plaintiff more closely than was reasonable and prudent was submitted to the jury just as it would have been had the exception not been sustained. The plaintiff apparently was satisfied with the issue as submitted for he made no objection thereto; nor did he except to the issue submitted inquiring whether defendant operated his automobile at an excessive rate of speed.

The appellant was not deprived of developing his case fully. The rulings of which complaint is made did not restrict his right to introduce evidence and did not deprive him of...