Willis v. Smith

• Decision Date: 28 July 1938
• Docket Number: No. 5311.,5311.
• Parties: WILLIS v. SMITH.
• Court: Texas Court of Appeals

120 S.W.2d 899

WILLIS v. SMITH.

No. 5311.

Court of Civil Appeals of Texas. Texarkana.

July 28, 1938.

Rehearing Denied September 29, 1938.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Action by Alice Ruth Smith against B. H. Willis to recover damages for personal injuries sustained by plaintiff and for loss of her husband in a collision between two trucks. From a judgment for plaintiff, defendant appeals.

Affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, C. W. Howth, of Beaumont, and Troy Smith, of Tyler, for appellant.

J. C. Epperson, of Mission, Pace, Goens & Park, of Tyler, and E. E. Fischer, of Houston, for appellee.

WILLIAMS, Justice.

Appellant, B. H. Willis, defendant below, appeals from a judgment rendered against him in favor of appellee, Alice Ruth Smith, plaintiff below, wherein she recovered damages for personal injuries sustained by her, and for the loss of her husband, growing out of a collision between two trucks on the Dixie Highway a few miles out of Tyler, Texas.

Plaintiff and her husband were riding in a Chevrolet gasoline truck operated by one C. W. Barron who was driving eastward towards Tyler for a load of gasoline. John Warner, an employee of defendant, driving westward from Tyler, was operating an International truck with a trailer attached loaded with pipe. The two trucks collided head-on near or on the crest of a small hill at night as they were proceeding in their respective directions. In the collision plaintiff's husband received injuries which resulted in his death. Plaintiff received various bodily injuries.

Plaintiff pleaded that the driver of the International truck was negligent in operating his truck, or part thereof, on his left-hand side of the road at and immediately before the collision. Plaintiff further alleged that this driver was guilty of other acts of negligence, specifying each. Defendant answered with general demurrer and denial, specially denying that his employee was guilty of negligence in any wise. Defendant pleaded that Barron, the driver of the Chevrolet, was negligent in driving on his (Barron's) left-hand side of the center of the highway at and immediately prior to the collision. He further pleaded that Barron was negligent of other acts, each being specified and enumerated in his pleadings.

Each question submitted by the court was predicated upon a specific act of negligence as pleaded by defendant. Each question was immediately followed by a conditional inquiry whether the jury found from a preponderance of the evidence that such act was the sole or only proximate cause of the collision. The jury found defendant's driver was operating his truck, or a part of it, upon his left-hand side of the center of the highway at and immediately prior to the collision, and that this negligence was a proximate cause of the injuries sustained. None of the other acts of negligence as pleaded by plaintiff was submitted to the jury. The jury found that Barron was not operating his truck, or part of it, upon his left-hand side of the center of the highway at and immediately prior to the collision. The jury answered the other defensive issues in favor of plaintiff, and also found that the collision was not the result of an unavoidable accident. Not any one of the findings of the jury is attacked.

The court refused to submit to the jury a special charge requested by defendant which reads: "Do you find from a preponderance of the evidence that the manner in which C. W. Barron drove his truck at and immediately prior to the time of the collision was not the sole proximate cause of said collision? Answer Yes or No." This requested charge is not based upon any pleading of the defendant. He did not plead general negligence. He pleaded specific acts of negligence and enumerated them, lettered from A to K, charging that Barron drove his truck over 45 miles per hour; excessive rate of speed under the circumstances; defective lights; defective brakes; failure to stop his truck before the collision; driving his truck on the left-hand side of the road, etc. The court submitted four of the specific acts charged. Defendant did not request the submission to the jury of any other specific act of negligence alleged by him, and there is no assignment which complains of the failure to submit an issue upon any specific act of negligence alleged. Defendant specified in his pleadings specific acts of negligence which in this form were submitted to the jury. The assignment is overruled. 41 Tex.Jur. p. 270; Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517.

Defendant excepted to special issues No. 15 and No. 16 in that each placed the burden of proof upon defendant. Special Issue No. 15, submitted to the jury and answered in the negative, reads: "Do you find from a preponderance of the evidence that at and immediately before the collision in question, the driver of the gasoline truck was operating it, or any portion of it, on his left-hand side of the center of the highway? Answer Yes or No." The jury was instructed that if they answered that question "Yes", and in that event only, they should answer Issue No. 16, which reads: "Do you find from a preponderance of the evidence that the operating of the gasoline truck at and immediately before the collision, or any portion thereof, on his left-hand side of the center of the highway (if it were so operated) was the sole, or only proximate cause of the collision in question? Answer Yes or No." Defendant contends that such burden of proof is upon the person (plaintiff) who asserts a cause of action based upon negligence of defendant. Special Issue No. 15 placed the burden of proof upon defendant to prove that Barron so operated his truck. This alleged specific act of negligence inquired about in Issue No. 15 was a defense pleaded by defendant, and the burden of proof rested on defendant to prove the affirmative of this issue. "The burden of proof rests upon defendant in those cases in which he seeks to overthrow the prima facie case made by plaintiff by proof of some affirmative substantive defense, or in other words to establish any affirmative defense upon which he relies to defeat recovery." 17 Tex.Jur. pp. 319-320, Sec. 95; Houston & T. C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995; Gurley v. San Antonio & A. P. Ry. Co., 58 Tex. Civ.App. 308, 124 S.W. 502; Chicago, R. I. & G. Ry. Co. v. Johnson, Tex.Civ.App., 224 S.W. 277; Montrief & Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276; Northern Texas Traction Co. v. Woodall, Tex.Com.App., 299 S.W. 220; Baker v. Beatty, Tex.Civ.App., 235 S.W. 971.

The jury found as a fact that Barron did not drive upon the left-hand side of the center of the highway. Hence is became unnecessary for the jury to determine in answer to Issue No. 16 whether such act was the sole proximate cause of the collision. And likewise the question whether the burden of proof was correctly placed in Issue No. 16 becomes immaterial to the disposition of this appeal and we...