Williams v. Rodocker

• Decision Date: 07 June 1935
• Docket Number: No. 1473.,1473.
• Citation: 84 S.W.2d 556
• Parties: WILLIAMS et al. v. RODOCKER.
• Court: Texas Court of Appeals

Page 556

84 S.W.2d 556

WILLIAMS et al. v. RODOCKER.

No. 1473.

Court of Civil Appeals of Texas. Eastland.

June 7, 1935.

Rehearing Denied June 28, 1935.

Appeal from District Court, Grayson County; F. E. Wilcox, Judge.

Suit by E. D. Rodocker against Buck Williams and others. From a judgment for the plaintiff, the defendants appeal.

Reversed and remanded.

Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, and Webb & Webb, of Sherman, for appellants.

Hay, Finley, Wolfe & Barron, of Sherman, for appellee.

FUNDERBURK, Justice.

This suit arose out of a collision between an automobile which plaintiff, E. D. Rodocker, accompanied by his wife, was driving, and a truck owned by Buck Williams and others, composing the partnership of Power Seal Gasoline Company, defendants. Plaintiff at the time of the accident was going north on paved highway No. 75, a few miles south of Denison, about 8:30 p. m., when it was dark, cloudy, and rainy. The truck was standing still and was found to have been extending over that part of the highway used by northbound traffic. Defendants were alleged to have been negligent in a number of different respects, each a proximate cause of the injuries to plaintiff's wife and to the automobile for which damages were claimed. The defendants, in addition to allegations to show that they were free from negligence, alleged that plaintiff and his wife were guilty of contributory negligence in different ways. Also, the defendants alleged that the injuries were the result of an unavoidable accident and of a new and independent cause. Numerous special issues were submitted to the jury, all of which were found in favor of the plaintiff. From the judgment in accordance therewith, the defendants have appealed.

We shall consider first some of appellants' assignments of error and propositions presenting questions concerning which our conclusions call for no disturbance of the judgment. It is contended that the court erred in refusing, over appellants' objection, to include in the definition of the term "proximate cause" as an element thereof "new and independent cause." The persistent idea that "new and independent cause" is an element of the definition of the term "proximate cause" is evidently a hang-over from the practice, now almost superseded of submitting cases to juries for a determination of the issues by a general verdict. Under that method of submission, it is the duty of the court to instruct the jury upon the law of the case. It is a part of that duty, in a negligence case, to instruct the jury as to the meaning and effect of a "new and independent cause" where the evidence raises an issue of whether the act or omission of the defendant claimed to constitute negligence has had its causal connection with the injury broken by a "new and independent cause." But in cases submitted to a jury upon special issues it is not only not the duty of the court to instruct the jury upon the law of the case, but it is the court's positive duty not to do so. A definition of "proximate cause" sufficient to inform the jury what the term means without at the same time constituting an instruction upon the law of the case will not include "new and independent cause." Such was the conclusion reached by this court in Texas & P. Ry. Co. v. Short, 62 S.W.(2d) 995, and reaffirmed in Sanders v. Lowrimore (Tex. Civ. App.) 73 S.W.(2d) 148, and Panhandle & S. F. Ry. Co. v. Miller (Tex. Civ. App.) 64 S.W.(2d) 1076. The opinions in these cases may be consulted for the reasons upon which the conclusion is based.

By another assignment and supporting proposition it is contended that the court erred in refusing to submit the issue of "new and independent cause." We shall assume that the evidence raised such issue. Seasonable request was made by appellants for its submission. Had the court not submitted the issue of "unavoidable accident," we could not escape the conclusion that there was material error in refusing to submit the issue of "new and independent cause." "Unavoidable accident," as now regarded by the courts, and as was defined in this case, obviously includes any "new and independent cause." The jury was instructed that "unavoidable accident" means "an event which occurs without negligence on the part of the plaintiff or the plaintiff's wife or the defendants' employee in charge of the truck in question, or which could not have been reasonably anticipated by either of them in the exercise of ordinary care." In submitting a case upon special issues, the court is never required to submit the same issue more than once. There would be, we think, even less reason for submitting the same issue affirmatively in two different forms than there would be in submitting an issue both affirmatively and negatively, which this court has held to be improper. Wichita Valley Ry. Co. v. Williams, 6 S. W.(2d) 439. The appellants in pleading both "unavoidable accident" and "new and independent cause," without alleging any distinguishing facts as constituting either, in effect but reiterated one plea, and the court having submitted the issue raised thereby as one of "unavoidable accident" did not err, we think, in refusing to submit the same issue under the merely different denomination of "new and independent cause." Had plaintiff pleaded particular facts as constituting an unavoidable accident, and other distinguishing facts as constituting a new and independent cause, then both issues should have been submitted with reference to each group. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517.

By the appellants' ninth proposition it is sought to show that the court erred in refusing to submit to the jury an issue calling for a finding of whether plaintiff failed to drive his Ford to the left so as to avoid colliding with the truck. Certainly there could be no issue of fact in this case that plaintiff had failed to collide with the truck. The basis of the suit was the fact of a collision. It is neither necessary nor proper to submit issues which are established conclusively by the undisputed evidence.

By other assignments and propositions it is asserted that the court erred in not submitting other requested issues involving contributory negligence, one of which being whether plaintiff was negligent, and, if so, was it the proximate cause of the injuries, in failing to drive his car to the left so as to avoid the collision. We have deemed it unnecessary to go into the record to see if all these issues were raised by the evidence. It is sufficient to say that, of course, if they were issues properly tendered and joined by the pleadings and supported by the evidence, they should have been submitted. Fox v. Dallas Hotel Co., supra; Thurman v. Chandler (Tex. Com. App.) 81 S.W.(2d) 489. Nothing more need be said, we think, upon these questions in view of the disposition which it becomes necessary to make of the appeal.

Two assignments of error may be regarded as presenting but a single question involving the subject of misconduct of the jury. Each of these assignments points out a different act of alleged misconduct, but the question of law arising upon each is the same. Two other assignments of error relating to different parts of the argument of counsel may be treated as presenting a like single question of improper argument. One other assignment of error relating to another part of the argument presents a different question of improper argument requiring separate consideration.

Generally, any principle of law applicable to misconduct of the jury is likewise applicable to improper argument of counsel. One exception is, that in questions of misconduct of the jury there is no occasion to consider the possible effect of objections made at the time and admonitions of the court given in response to such objections, or the absence of same, as showing a waiver of error, or as rendering the error immaterial or harmless. As applicable to the assignments relative to misconduct of the jury, it was shown that during the deliberations of the jury, and while the jury was considering the issues calling for a finding of the amount of damages, there was mention and some discussion of attorney's fees and of insurance. Each juror testified on the hearing on motion for new trial that it had no influence upon his agreement to the verdict. One juror, who at first favored a verdict of $1,000 damages, after such mention and discussion agreed to the verdict rendered of $4,000. He stated his reason for the change to be that he did not want to hang the jury.

The argument of counsel pointed out in one assignment was: "I take it they are going to try to confuse you on this, but at least some of you have driven over the highway and gone down to Iron Ore, and some of you drive it every day." Another part of the argument was: "The testimony is that from the top of this little hill that it was a long slope to Iron Ore bridge. A few of you men have driven it and know it is. And, therefore, he had driven up almost to the top of the little hill up behind that car, up that grade with his truck before he went into that bend. And I say that he ought to be penalized if he tried to pass that passenger car on the top of that grade." The vice in both of these parts of the argument complained of was the suggestion to the jurors to use their individual knowledge of certain facts, and the implication that they were not necessarily to consider only the evidence introduced upon the trial. No objection was made to these arguments at the time and no admonitory instructions were given by the court not to consider same.

The argument complained of in the other assignment which raises a different question was as follows: "Now, they say I didn't say anything about Shelton. Let's see what Shelton says — as to whether he warned or caused to be warned or signaled — let's see what Shelton said. Johnnie Shelton that he said I didn't refer to and that I would...