Webb v. Karsten

Decision Date19 December 1957
Docket NumberNo. 13132,13132
Citation308 S.W.2d 114
PartiesW. Graham WEBB, Jr., Appellant, v. Floyd L. KARSTEN et al., Appellees.
CourtTexas Court of Appeals

Thomas L. Blanton, Albany, for appellant.

Blakeley & Williams, Carey Williams, Houston, for appellees.

WERLEIN, Justice.

W. Graham Webb, Jr., and W. G. Webb brought this suit against Floyd L. Karsten, individually and in his capacity as administrator of the Estate of Floyd L. Karsten, Jr., deceased, and the estate of Robert C. Telschow and his widow as survivor of their community estate and the representative thereof, to recover damages growing out of the death of William Graham Webb, III, a minor, who was killed in a collision between a car allegedly driven by Floyd L. Karsten, Jr., deceased, and a car driven by Robert C. Telschow at the intersection of Inwood Drive and Timber Lane in River Oaks Addition to the City of Houston. The plaintiffs made Floyd L. Karsten individually a party-defendant in the suit alleging that he had furnished his son, Floyd L. Karsten, Jr., deceased, with a Nash-Healy Sport Convertible capable of being driven at a very high rate of speed, knowing that the said Floyd L. Karsten, Jr., was only 17 years of age and was an inexperienced, incapable and incompetent driver.

Plaintiffs alleged a number of grounds of negligence and gross negligence on the part of Floyd L. Karsten, Jr., proximately causing the collision in question. They also alleged various grounds of negligence on the part of the said Robert C. Telschow, which proximately caused the collision in question. They pleaded that William Graham Webb, III, was only 19 years of age at the time of his death, and that his father, W. Graham Webb, Jr., and his mother, Mrs. Frances, and his grandfather, W. G. Webb, are the only beneficiaries entitled to recover damages because of his death.

At the conclusion of plaintiffs' testimony, appellees moved the court for an instructed verdict in their favor on the grounds that:

1. There was no evidence that deceased, Floyd L. Karsten, Jr., was driving the Nash-Healy automobile at the time of the collision in question, or, in the alternative, that any evidence tending to establish such fact was a mere speculative and conjectural conclusion, there being no more evidence than sufficient to raise a mere surmise or suspicion of the truth of such ultimate fact.

2. There were neither allegations nor proof of acts or omissions on the part of Floyd L. Darsten, Jr., which could constitute gross negligence, even if he were driving on the part of Floyd L. Karsten in entrusting

3. There was no actionable negligence the part of Floyd L. Karsten in entrusting the automobile in question to his son, Floyd L. Karsten, Jr., in the absence of proof that Floyd L. Karsten, Jr., was guilty of gross negligence proximately causing the death of deceased, Floyd L. Karsten, Jr.

4. If the said Floyd L. Karsten, Jr., was guilty of gross negligence, plaintiff's deceased was guilty of contributory negligence proximately causing his death as a matter of law in failing to avail himself of the opportunty afforded him to leave the car.

Upon suggestion of the court with reference to the procedure to be followed, appellees asked that the court withdraw the case from the jury and render judgment for appellees, which was accordingly done, over plaintiffs' objections and exceptions. Thereupon, plaintiffs dismissed the case as to the estate of Robert C. Telschow and his widow, Mrs. Pearl Telschow, as survivor of their community estate and the representative thereof. W. G. Webb, the grandfather of the deceased, William Graham Webb, III, stated in open court that he had no interest in the suit and he was therefore dismissed therefrom.

In due course, appellant, W. Graham Webb, Jr., perfected his appeal and this Court is now called upon to determine whether there was any evidence of probative force requiring that the case be submitted to the jury, taking into consideration the pleadings, testimony adduced at the trial and any testimony that may have been wrongfully excluded by the trial court. Appellant has assigned 17 points of error which he has grouped together for consideration of this Court. His first three points are directed especially at the court's action in withdrawing the case from the jury and rendering judgment for the appellees as a matter of law.

The law is well settled in this State that the jury are ordinarily the judges of the facts proved, the weight to be given to the testimony, and the credibility of the witnesses, and that trial court is not justified in giving a peremptory instruction unless the evidence is so conclusive that reasonable minds cannot differ thereon. See Rothchild Co. v. Moore, Tex.Com.App., 37 S.W.2d 121.

In the case of Thomas v. Postal Telegraph-Cable Co., Tex.Com.App., 65 S.W.2d 282, it was said:

'Since the verdict was instructed in the district court for the defendant companies, we must view the evidence in its most favorable light for the Thomases. If there is any evidence in the record of probative force which would justify a finding in favor of the Thomases, the judgments of the two lower courts should be reversed and the cause remanded to the district court for a new trial.'

See also Kleising v. Miller, Tex.Civ.App., 83 S.W.2d 732; Singleton v. Carmichael, Tex.Civ.App., 271 S.W.2d 324, ref. n. r. e.; Texas Employers' Ins. Association v. Boecker, Tex.Civ.App., 53 S.W.2d 327, writ refused.

It is also well settled that in order to justify submission of the case to the jury, there must be some evidence of probative force, and that if there is no more evidence than sufficient to raise a mere surmise or suspicion of the truth of the ultimate fact, the case should not be submitted to the jury under the rule announced by the Supreme Court of this State in the case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. See also Seybold v. Johnson, Tex.Civ.App., 11 S.W.2d 399, writ dismissed.

We are called upon to determine first whether there was any evidence more than a mere surmise or suspicion that would warrant a jury in finding that Floyd L. Karsten, Jr., was driving the Nash-Healy automobile at the time of the fatal collision. The title to the car was in Floyd L. Karsten, Sr., who turned the car over to his son to use. The only evidence tending to establish in any way that Floyd L. Karsten, Jr., was driving the car in question was the speculative and conjectural conclusion of the investigating officer, J. H Sullins, who arrived at the scene of the accident some minutes after the collision. His opinion was based on his factual testimony that there was a long scratch or mark made by rubber on the turtleback of the Nash-Healy extending from behind the driver's seat in a diagonal direction toward the right rear of the car, which he thought was made by rubber of a color which matched the color of the rubber on the shoes of the boy whose body was behind the Nash-Healy car after the collision. It is unquestioned that the boy whose body was found behind the Nash-Healy was Floyd L. Karsten, Jr. This officer testified that the shoes worn by the Karsten boy were crepe-rubber-soled, the crepe-rubber being of a peculiar orange-yellow color, and that they were low-quarter sport shoes and did not in any way resemble a Wellington boot.

Officer Sullins further testified as follows:

'Q. Assuming, without admitting it officer, that Floyd Karsten, Jr., was in the middle of that seat prior to the collision, if his body went without turning sideways to the car that mark could have been made by his left heel draging there, could it not? I am not asking you to admit that is where he was. I am asking you if you assume he was in the middle, it could have been made that way, could it not? A. It could have been, I suppose. I don't know.

'Q. And if his body was turned sideways to the axis of the car and he was crossways, it could have been made by his right heel draging, could it not? A. I suppose so. I don't know how it happened.'

It would, therefore, seem from the evidence of the mark on the turtleback, testified to by said officer, that the Karsten boy may or may not have been driving the car at the time of the collision. Under the Equal Inference Rule, as announced in such cases as Perren v. Baker Hotel of Dallas, Tex.Civ.App., 228 S.W.2d 311, and Heavy Haulers v. Nicholson, Tex.Civ.App., 277 S.W.2d 250, 254, decided by this Court, the evidence of Officer Sullins lacked the probative force to establish the ultimate fact that the Karsten boy was the driver of the Nash-Healy car. There was also testimony that the Karsten boy never owned any crepe-soled shoes in his life, and that he usually wore half-boots, or what are known as Wellington boots. This testimony is corroborated by the photographs taken at the scene of the accident showing a Wellington boot lying near the Karsten boy as he lay near the curb in his socks. In Heavy Haulers v. Nicholson, supra, this Court stated:

'Where circumstances are equally consistent with the existence and nonexistence of an ultimate fact sought to be established, such circumstances are wanting in probative force as any evidence tending to establish the existence of the ultimate fact. Perren v. Baker Hotel of Dallas, Tex.Civ.App., 228 S.W.2d 311; General Accident Fire & Life Assurance Corporation v. Perry, Tex.Civ.App., 264 S.W.2d 198.'

It is, therefore, the opinion of this Court that there was no evidence of sufficient probative force as to who was driving the Nash-Healy automobile on the occasion in question that would warrant submission of such issue to the jury.

It is undisputed that there were three boys in the Nash-Healy car at the time of the collision, namely: Floyd L. Karsten, Jr., William Graham Webb, III, and Peter Fondren Underwood. All three of these boys were killed. It is also undisputed that the Webb boy was the guest of the Karsten boy on the occasion in question, so that in order for...

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