Ussery v. Ewell Hodges, Inc.

• Decision Date: 29 June 1967
• Docket Number: 286,Nos. 285,s. 285
• Citation: 417 S.W.2d 332
• Parties: Marian Kay USSERY, a Minor et al., Appellants, v. EWELL HODGES, INC., et al., Appellees. Ira D. USSERY et ux., Appellants, v. EWELL HODGES, INC., et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 332

417 S.W.2d 332

Marian Kay USSERY, a Minor et al., Appellants, v. EWELL HODGES, INC., et al., Appellees.

Ira D. USSERY et ux., Appellants, v. EWELL HODGES, INC., et al., Appellees.

Nos. 285, 286.

Court of Civil Appeals of Texas Tyler.

June 29, 1967.

Rehearing Denied July 20, 1967.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer and Frank T. Abraham, Houston, for appellants Ussery.

Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Arthur M. Albin, Dallas, for appellants Conaway and Smith.

Johnson, Hathaway & Jackson, Thomas W. Hathaway and Ben Johnson, Tyler, for appellees Hodges and Vandekop.

Ramey, Brelsford, Flock & Devereux, Donald Carroll and Michael A. Hatchell, Tyler, for appellees Thornton and Swann Furniture Co.

SELLERS, Justice.

This suit was instituted for personal injuries to Mr. and Mrs. Ira D. Ussery and their minor children, Marian Kay Ussery and Barbara Ann Burns, received when the Volkswagen in which they were riding was struck from the rear by a large Mack truck owned by Ewell Hodges, Inc. and operated by its employee, Peter Albert Vandekop. The Volkswagen belonged to Horace Smith, Inc., an automobile dealership, and the Usserys were trying it out as prospective purchasers. James T. Conaway, a salesman employed by Horace Smith, Inc., was sitting beside Mrs. Ussery, who was driving, and Mr. Ussery and the children were in the back seat.

A pickup truck owned by Swann Furniture Company and driven by its employee, Leonard B. Thornton, was between the Volkswagen and the Mack truck as the three vehicles proceeded in a Westerly direction on Highway No. 64 prior to the accident.

Mrs. Ussery slowed down gradually and turned to the right to enter the broad entrance leading to a motel, and Thornton likewise pulled to the right and entered the driveway of the motel. Vandekop, in the Mack truck, then collided with the Volkswagen.

The Ussery family brought this suit against Ewell Hodges, Inc., Vandekop, and Thornton. Ewell Hodges, Inc. and Vandekop filed a third-party complaint complaining of Thornton and Swann Furniture Company and also Conaway and Horace Smith, Inc.

The jury found that Vandekop was guilty of negligence in following too closely and in failing to properly apply his brakes, and that each of those grounds of negligence was a proximate cause of the accident. There was no finding of causative negligence on the part of Horace Smith, Inc., Conaway, Swann Furniture Company, or Thornton . The jury found one ground of causative negligence against Mrs. Ussery--failure to give a signal of her intention to make a right turn continuously for at least one hundred feet.

On this verdict, the District Court awarded the minors, Marian Kay Ussery, $90,000.00, and Barabara Ann Burns, a $2,000.00 judgment against Vandekop and Ewell Hodges, Inc., but did not include in the judgment the medical and hospital expenses incurred for the minors from the date of the accident until time of trial, the amount of which was agreed to; nor such expenses which the jury found would be required in the treatment of Marian Kay Ussery from the time of trial until she reached twenty-one years of age ($20,000.00), and denied any recovery to Mr. and Mrs. Ussery although the jury found $5,000.00 for Mrs. Ussery and $7,500.00 for Mr. Ussery. The trial court's judgment awarded Vandekop and Ewell Hodges, Inc. contribution from Conaway and Horace Smith, Inc. in the amount of one-half of the recovery against them. From this judgment, Vandekop and Ewell Hodges, Inc. did not appeal.

Conaway, Horace Smith, Inc., and all of the Usserys have appealed, variously raising a number of points of error; however, one point was raised by all appellants which, in our view, becomes determinative of the entire case. It is that under this record the finding that Mrs. Ussery's failure to give a signal was a proximate cause of the accident was not supported by any evidence of probative force. It is doubtful that there is any evidence beyond a scintilla that Mrs. Ussery failed to give a turn signal. There is direct and positive testimony by both Mr. Ussery and Conaway that she did turn on the right-turn signal light. Mrs. Ussery had no recollection of the facts of the accident and no one testified affirmatively to the absence of a signal. Thornton saw a light on the right rear corner of the Volkswagen but didn't know whether it was a turn signal or the brake light. Vandekop testified that he could not see the Volkswagen because of the pickup truck in between until the pickup turned out to the right immediately before the collision so that he could not have seen a signal being given before the turn, if there was one.

However, assuming that no proper signal was given, we hold that there is no evidence of probative force in the record to support a finding that such failure was a proximate cause of this accident. The only witnesses whose testimony is relevant in this connection are Vandekop and Thornton. Vandekop's testimony was that because of the pickup truck in between, he could not see the Volkswagen until the pickup turned to the right 'just slightly before the impact'; that the Volkswagen 'immediately made a turn to the right also' and that this was 'just a split second' before the collision. Thus, according to his own testimony, he could not have seen any signal given by Mrs. Ussery until immediately before the collision when he was as little as thirty feet away with no more than a 'split second' left and with everything happening 'in practically a flash.' A signal could not have affected his actions or enabled him to prevent the accident in view of his testimony that he was going about forty miles per hour and that it would probably take 150 feet to stop the truck at that speed. (In his deposition, he had testified that it would take 250 feet, not including reaction of another 25 feet.) Since his own estimate of the distance of the Volkswagen when he first saw it was from 30 feet to, at the most, 60 feet, it is clear from his own testimony that no signal would have enabled him to stop or otherwise avoid the accident. Moreover, when the Volkswagen did come into Vandekop's view, he actually observed that it began turning to the right so that a signal would not have added to his knowledge or caused him to do anything different than he did in the fraction of a second available.

Vandekop himself did not attribute the accident to the failure of Mrs. Ussery to give a signal, and on examination by his own counsel recognized that when there is a line of cars of two or more in succession 'you must rely on the car in front of you to drive and signal as to what is happening in front.' Likewise, there is no evidence that Thornton would have acted any differently if there had been a signal from Mrs. Ussery, since he testified that he was conscious as soon as he became aware of the Volkswagen that it was slowing down and 'in the process of preparing to make a right turn into the motel driveway', and when he first noticed it 'it was turning to the right and slowing very rapidly, yes, sir.' He testified that he could and would have brought his pickup truck to a complete stop if necessary and would have been able to avoid collision with any part of the Volkswagen but turned to the right only because he was afraid that the Mack truck would hit him. He testified that he was 'aware of the movement of the Volkswagen automobile sufficiently' to appraise and acquaint himself 'with the fact that she was obviously angling into and making a turn into the motel driveway.' While, of course, he could not have had positive knowledge of what the Volkswagen was going to do, he believed it was going to turn to the right and acted on the assumption, and testified that it 'would have made no difference one way or the other' whether her signal had been on for 150--200 feet or not.

Thornton testified that just before he turned off to the right, he looked in his rear-view mirror and 'I saw a mirror full of radiator of that truck.' He turned aside not because of any sudden action of the Volkswagen, but because he was afraid that the Mack truck would hit him, stating that when he saw it looming in his rear-view mirror 'I realized I...