West Texas Coaches v. Madi

• Decision Date: 09 April 1930
• Docket Number: No. 1343-5469.,1343-5469.
• Citation: 26 S.W.2d 199
• Parties: WEST TEXAS COACHES, Inc., v. MADI et al.
• Court: Texas Supreme Court

26 S.W.2d 199

WEST TEXAS COACHES, Inc., v. MADI et al.

No. 1343-5469.

Commission of Appeals of Texas, Section A.

April 9, 1930.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Masota Madi and others against the West Texas Coaches, Inc. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [15 S.W.(2d) 170], and defendant brings error.

Judgment of Court of Civil Appeals and trial court affirmed.

Bouldin & Zivley, of Mineral Wells, Robert Hanger, of Fort Worth, and Harry P. Lawther, of Dallas, for plaintiff in error.

Gross & Gross, of Mineral Wells, and Goree, Odell & Allen, of Fort Worth, for defendants in error.

SHARP, J.

A statement of the nature and result of this case may be found in the opinion of the Court of Civil Appeals for the Eleventh Supreme Judicial District, in which the judgment of the trial court was affirmed, and we refer to that opinion. 15 S.W.(2d) 170. Plaintiff in error applied for writ of error, which was granted by the Supreme Court.

In order to keep before us the issues involved in this suit, we will set out the issues submitted by the trial court to the jury and their findings thereon:

"Special Issue Number One: Under all the facts and circumstances in this case and under the conditions existing at the time of the collision in question was the operator or driver of the West Texas Coach, known as `Miss Clyde,' negligent in passing or attempting to pass, if he did either, a truck on the Bankhead Highway at the rate of speed at which said Coach was being operated? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Two: If Special Issue Number One is answered in the affirmative, then was the negligence of the driver of said bus at said time and place a proximate cause of the collision and death of John Madi? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Three: At the time and place of the collision in question, was the operator or driver of the defendant's coach which collided with the Chevrolet car, in which John Madi was riding, operating said coach at a greater rate of speed than fifteen miles per hour? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Four: If Special Issue Number Three is answered in the affirmative, then was the rate of speed at which the defendant's coach was being operated at said time and place a proximate cause of the collision, if any, and the death of John Madi? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Five: Under all the facts and circumstances in this case at the time and place of the collision in question, did the operator of the said West Texas Coach operate and drive said Coach, if he did do so, at such rate of speed as to endanger the life of persons who were then and there on the Bankhead Highway? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Six: If Special Issue Number Five is answered in the affirmative, then was the rate of speed at which the coach was being operated at the time and place of the collision a proximate cause of the death of John Madi? Answer Yes or No just as you find."

To which the jury answered "Yes."

"Special Issue Number Seven: What amount of damages if any, do you find that the plaintiff Mrs. Masota Madi, as the wife and beneficiary of John Madi deceased, has sustained by reason of the death of the said John Madi? Answer the sum you find, if anything.

"In arriving at and determining your answer to this question or to Special Issue Number Seven, you will take into consideration and allow her whatever sum of money as if paid now would represent the fair value of what the plaintiff, Mrs. Masota Madi, had a reasonable right to expect under the circumstances to receive from the earnings of her said husband. In determining the amount if any you will allow her, you may consider the earnings apparently if any of her said husband at the time of his death, his age and the condition of his health. In this connection, however, you are instructed that in arriving at and allowing damages, if any, to Mrs. Masota Madi the plaintiff, you must not take into consideration nor allow her any sum as compensation for her bereavement, mental anguish or pain suffered by her by reason of the death of her said husband, but you can allow her any such damages, if any, as resulted in a pecuniary loss to her occasioned by his death."

To which the jury answered "$4,000."

"Special Issue Number Eight: In what amount, if any, do you find that the minor plaintiffs, Abraham Madi, Meida Madi and Joseph Madi, as the children of John Madi, deceased, if you find they are his children, have each sustained damages, if any, by reason of the death of the said John Madi? Answer in the sum you find, if anything for each individual plaintiff named.

"In arriving at and determining your answers to the foregoing question you will take into consideration and allow them and each of them whatever sum of money as if paid now would represent the fair and reasonable value of what the deceased, John Madi, would probably have contributed to their support, education and maintenance during the minority of each of them. In determining the amount, if any, you may consider the earnings of the said John Madi at the time of his death, his age and the condition of his health as well as the value, if any, from a pecuniary standpoint only of his care and advice. In this connection, however, you are instructed that in arriving at and allowing damages, if any, to each of said plaintiffs you must not take into consideration nor allow them or either of them any sum whatever as compensation for bereavement, mental anguish or pain, suffered by reason of the death of John Madi, but you can allow to them and to each of them only such damages, if any, as resulted in a pecuniary loss occasioned by the death of John Madi.

"An unavoidable accident is an event happening suddenly and unexpectedly without the foresight or knowledge of a person and without fault or negligence on the part of anyone which caused the injury or damage."

To which the jury answered "Abraham Madi, $2,000. Meida Madi, $2,000. Joseph Madi, $2,000."

"Special Issue Number Nine: Was the collision of the bus and Chevrolet car, at the time and place in question, an unavoidable accident as that term has been defined to you in the preceding paragraph of this Charge? Answer Yes or No just as you find."

To which the Jury answered "No."

Plaintiff in error, in its petition for writ of error, presents many assignments, and the writ was granted upon the following assignment, which reads as follows:

"The Honorable Court of Civil Appeals erred in overruling Appellant's Ninth Assignment of Error, same being as follows:

"`The Court erred in submitting to the jury Special Issue No. 5 for the reason that the question therein presented to the jury is vague, indefinite and uncertain, and one which permits, if it does not require of the jury, speculation and guess work, pure and simple. The issue in question is a virtual copy of a provision of the Penal Code, which is void and inoperative, because of indefiniteness, vagueness and uncertainty and because no test or definition is prescribed which would make the same certain and definite and therefore for said reason is recognized by the courts as incapable of enforcement.

"`The submission of the foregoing issue, together with the submission of Special Issue No. 3 as to whether the bus was being operated at a greater rate of speed than fifteen miles an hour, worked to the injury and prejudice of this defendant for the reason that the same amounted to an instruction by the court to the jury that if they found that the bus was being operated at such a rate of speed as to endanger the life of persons who were then and there on the Bankhead Highway.'"

The trial court submitted to the jury special issues Nos. 1 and 2, and the jury answered "Yes" to both issues. The result of this finding was that plaintiff in error was guilty of negligence as charged in the petition, and that such negligence was the proximate cause of the collision and death of John Madi. The Court of Civil Appeals held that the answer of the jury to special issues Nos. 1 and 2 was sustained by the evidence. In its petition...