Willis Sears Trucking Co. v. Pate

Decision Date19 March 1970
Docket NumberNo. 7142,7142
Citation452 S.W.2d 782
PartiesWILLIS SEARS TRUCKING COMPANY et al., Appellants, v. Aubrey J. PATE et ux., Appellees.
CourtTexas Court of Appeals

Orgain, Bell & Tucker, Beaumont, for appellants.

L. Giles Rusk, Houston, for appellees.

KEITH, Justice.

Sears, the owner of a truck-tractor combination, and his driver, Day, appeal from an order overruling their separate pleas of privilege to be sued in Jasper County, their domicile. The plaintiff, Pate, sued both defendants for personal injuries he sustained when the truck he was driving collided with that owned by Sears and driven by Day. The accident happened on U.S. Highway 59, near Cleveland, Liberty County, Texas, shortly before 4:00 o'clock, a.m., October 18, 1968. Only deposition testimony was offered in evidence upon the hearing and this did not include any testimony from the plaintiffs.

Day left Jasper shortly before 2:00 o'clock, a.m. with a load of lumber for delivery in Houston. Nearing Cleveland, he slowed down and was preparing to turn to his right into a cafe-motel when his vehicle was struck violently from the rear by the truck driven by Pate. There is no question as to ownership of the truck or scope of employment involved in the appeal. On the other hand, there is no testimony in the record which explains how the accident actually happened.

Pate, in his controverting affidavit, relied upon Subdivision 9a, Article 1995, to sustain venue in Liberty County; and, at the conclusion of the hearing, the court entered judgment overruling the plea of privilege from which this appeal comes.

It is necessary that we consider in detail the pleadings of the plaintiffs because the court, on the face of the order overruling the plea of privilege, made certain findings:

'* * * and the court being of the opinion that the evidence sustains the following acts and omissions of negligence, And none other: Those grounds of negligence set forth in paragraphs A, B, G, I and J of plaintiffs first amended original petition and any other grounds of negligence alleged by plaintiff which may appear to have raised an issue of same from the entire record.' (Emphasis supplied .)

In the third paragraph of the amended petition, plaintiffs alleged:

'As the basis for this suit, your Plaintiffs would respectfully show unto the Court and Jury that the collision was proximately caused by the negligence of the Defendants in the operation of their truck by some one or more of the allowing acts or omissions on the part of said company Defendant And/or the Defendant driver:

'A. In that said Willis Edward Sears, dba Willis E. Sears Trucking Company furnished his driver with a truck with defective or ineffective lights, braking equipment, tires, and other safety devices.

'B. In failing to reasonably inspect said truck so as to ascertain whether such truck was equipped with ineffective or defective equipment.

'G. In making a turn when such movement could not be made in safety.

'I. In operating a vehicle with an overhanging load over the rear of the trailer, obstructing the view of the rear of the trailer.

'J. In failing to display a light on the overhanging load which could be visible for 500 feet from the rear.'

In our analysis of plaintiffs' pleadings charging negligence, we are confronted with the 'linguistic abomination' 1 of 'and/or'. This symbol, according to one court, is not 'the English language' within the constitutional provision requiring judicial proceedings to be in the English language. 2 'It is indicative of confused thought and should have no place in either a statute or legal document as 'and/or' makes confusion worse confounded.' 3 The court in State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, 1180 (Mo.Sup. in Banc, 1936), said:

'There is no reason why a statute, contract, or legal document of any kind cannot be stated in plain English. The use of the symbol 'and/or' has been condemned by some courts and should be condemned by every court.'

This court, speaking through the late Justice Combs, condemned the phrase in American General Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Beaumont Tex.Civ.App., 1938, error dism.), saying:

'Incidentally, we will remark that we would probably be warranted in considering that part of the sentence following 'and/or' as meaningless, for to our way of thinking the abominable invention, 'and/or', is as devoid of meaning as it is incapable of classification by the rules of grammar and syntax.'

In Wood v. State, 156 Tex.Crim.R. 419, 243 S.W.2d 31, 33 (1951), Judge Davidson said:

'The civil appellate courts of this state have also uniformly condemned the words, 'and/or,' as meaningless, indefinite and uncertain. American Gen. Ins. Co. v. Webster, Tex.Civ.App., 118 S.W .2d 1082; Collier, Inc. v. Connelley, 134 Tex. 569, 137 S.W.2d 14; United Service Automobile Ass'n v. Miles, 139 Tex. 138, 161 S.W.2d 1048.'

There is an annotation to be found in 118 A.L.R. 1367, 1368 (1939) (supplemented in 154 A.L.R. 866 (1945)), wherein are collated the more choice judicial epithets heaped upon this 'confusing hybrid.' It would unnecessarily lengthen this opinion to include the complete list, instead we adopt the judicial invective found therein as our own.

It may well be that in attacking the phrase, we are among those who are 'tilting their lances at windmills' (45 Yale L.J. 918 (March 1936)). Nevertheless, we join with the authorities cited; and being unable to improve upon the language selected and used in the foregoing authorities condemning this neolegalism, we add our disapproval to that already heaped upon the overworked phrase. We note particularly that 'the courts are unanimous in condemning the use of the term 'and/or' in pleadings.' 118 A.L.R. at p. 1372. If plaintiffs' counsel meant the conjunctive, he should have employed the word 'and'; but, if he meant to express the disjunctive, he should have used the word 'or'. Having used both, he expressed neither. Plaintiffs violated Rules of Civil Procedure, rule 45(b), in that the pleading did not 'consist of a statement in plain and concise language of the plaintiff's cause of action.' Millspaugh v. Northern Indiana Public Service Co., 104 Ind.App. 540, 12 N.E.2d 396 (Indiana App. in Banc, 1938). See also the collation of authorities found in Gunnells Sand Co. v. Wilhite, 389 S.W.2d 596, 598 (Waco Tex.Civ.App., 1965, error ref. n.r.e.), discussing the requirement of a pleading to support the admission of evidence.

Nevertheless, we will undertake to determine, if possible, what plaintiffs' counsel meant through the use of the 'interloping disjunctive - conjunctive - conjunctive-disjunctive conjunction.' 4

By the process of ignoring the symbol, such being the only way we can make any sense of the allegations of negligence, we come, hopefully, to the conclusion that subdivision A has reference only to Sears and not to Day. Subdivision B, apparently, was designed to apply to both defendants. Subdivision G probably was intended to apply only to Day, unless the vicarious liability of Sears is to be interpolated therein by reference and the same is true of Subdivisions I and J. Upon the basis of this analysis, we undertake to examine the record to determine if Pate has discharged the burden cast upon him under the venue statute. Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233, 234 (1941); Czikora v. Hutcheson, 443 S.W.2d 871, 876 (Beaumont Tex.Civ.App., 1969, error dism.).

Incredible as it may appeal, from this relatively simple truck collision, defendants come forward urging 22 points of error which break down into three component parts: (a) there was no evidence of negligence (either generally or on any of the specific grounds noted in the order), or, alternatively, insufficient evidence; (b) there was no evidence of proximate cause, or, alternatively, insufficient evidence to show that the alleged negligent acts proximately caused the collision; and (c) the court erred in permitting the witness Stephens to testify as to the condition of a vehicle which he observed prior to the accident.

'In determining whether the trial court's findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary.' Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.Sup., 1963).

In passing upon the points challenging the sufficiency of the evidence, we will consider the record as a whole. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

We first consider the complaint with reference to Stephens, a truck driver for the same concern as employed Pate. Stephens and Pate had taken their rest break at Livingston together and Stephens had driven off ahead of Pate, both going to Houston on U.S. Highway 59. They left Livingston shortly after 4:00 o'clock a.m. As they left Livingston, stephens proceeded through a traffic signal which changed before Pate went through, and the parties remained separated thereafter.

Stephens testified that as he proceeded south from Livingston on U .S. Highway 59, and at a point variously estimated as being from three to five miles north of the scene of the collision, he saw two trucks carrying lumber. He described one of the trucks as being red in color but was unable to identify it by either make or model. He thought at first that it was hauling wrecked cars, but when he got closer, saw that it was hauling lumber. There were two of such trucks, one of which was adequately lighted. As to the other, however, Stephens noticed headlights on the tractor but no tail light or lights on the trailer. The defectively lighted vehicle was in the right or outside lane of the divided highway and was going 'real slow,' approximately 20 to 25 miles per hour.

From this basis, plaintiffs seek to raise the inference that the truck seen by Stephens was the same truck as that involved in...

To continue reading

Request your trial
7 cases
  • Krebsbach v. State
    • United States
    • Texas Court of Appeals
    • February 27, 1998
    ...akin to " 'tilting ... lances at windmills.' " Ex parte Slaton, 484 S.W.2d 102, 106-107 (Tex.Crim.App.1972), quoting Willis Sears Trucking Co. v. Pate, 452 S.W.2d 782 (Tex.Civ.App.--Beaumont 1970, no writ). Similarly, courts from neighboring jurisdictions have upheld utilization of the term......
  • Ex parte Slaton
    • United States
    • Texas Court of Criminal Appeals
    • September 5, 1972
    ...in 154 A.L.R. 860 (1945). See also 1 Branch's Ann.P.C., 2d ed., § 523, p. 500. Only recently in Willis Sears Trucking Company v. Pate, 452 S.W.2d 782 (Tex.Civ.App.--Beaumont 1970), Justice Keith referred to the symbol as a 'confusing hybrid' and a Certainly, use of the phrase should be care......
  • In Re United Scaffolding Inc.
    • United States
    • Texas Court of Appeals
    • June 24, 2010
    ...language. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 & n. 1 (Tex.App.-Beaumont 2010, no pet.); Willis Sears Trucking Co. v. Pate, 452 S.W.2d 782, 784 (Tex.Civ.App. Beaumont 1970, no writ). The question here is whether the use of "and/or" in the trial court's order render......
  • Lindop v. Allstate Ins. Co.
    • United States
    • Texas Court of Appeals
    • October 5, 1976
    ...found by the jury. Rankin v. Nash-Texas Company, 129 Tex. 396, 105 S.W.2d 195 (Tex.Com.App.1937, opinion adopted); Willis Sears Trucking Company v. Pate, 452 S.W.2d 782 (Tex.Civ.App. Beaumont 1970, no writ). From the facts in the record it may be surmised or suspicioned that the presumed hi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT