A. G. BARCLAY, Petitioner, v. C. C. PITTS SAND AND GRAVEL COMPANY, Respondent.
No. A-10199
Supreme Court of Texas
Feb. 17, 1965
Rehearing Denied March 17, 1965
In the case of the Fifth National Bank of San Antonio v. Iron City National Bank of Llano, supra, San Antonio Bank‘s lost opportunity to recover its funds from the Llano Bank cashier—a swindler who owned no property—would seem rather remote. Yet this Court there upheld the San Antonio Bank‘s plea of estoppel against the Llano Bank for the latter‘s negligent delay in notification. The Court quoted with approval the following language taken from Leather Manufacturer‘s Nat. Bank v. Morgan, 117 U.S. 96, 6 S.Ct. 657, 29 L.Ed. 811:
“It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. * * * As the right to seek and compel restoration and payment from the person * * * was in itself a valuable one, it is sufficient if it appears that the bank, by reason of the negligence, * * * was prevented from promptly and, it may be, effectively exercising it.”
The majority does not question the soundness of Concord‘s argument or of its supporting authorities. What the majority holds is that Concord was not injured by its loss of opportunity because the evidence establishes conclusively that the drillsite could not have been purchased by June 1. I cannot agree with the holding.
In the instant case it is true, as respondent contends, that the landowners were vigorously resisting Concord‘s efforts to condemn the drillsite. They obtained three temporary restraining orders staying the proceedings, and prior to the filing of the condemnation suit, the landowners had refused at least two offers made by Concord to purchase the drillsite. However, as Pawel testified, his first offers were substantially less than the $4,064 condemnation award which was finally set on June 6, 1961 and accepted by the landowners in November, 1961. He further testified that had Concord realized Alco intended to insist on the June 1 deadline, Concord would have been willing to “pay through the nose” for the site. There is nothing in the record to show that the landowners would not have sold to Concord if it had raised the ante. Had Concord offered the landowners a handsome premium for the drillsite, there would have been at least a reasonable possibility that the site could have been procured prior to the deadline, and the evidence does not, in my judgment, establish conclusively that it could not have been purchased by June 1.
I would grant the motion for rehearing and reverse the judgment of the Court of Civil Appeals and would affirm the judgment of the trial court denying Alco a recovery.
STEAKLEY, J., joins in this dissent.
Jones, Fillmore, Robinson & Lambert, Wichita Falls, for respondent.
WALKER, Justice.
This suit was brought by A. G. Barclay, petitioner, to recover the damages he sustained when his automobile ran into a truck owned by C. C. Pitts, respondent, who is engaged in business under the name of C. C. Pitts Sand and Gravel. Respondent‘s employee, Joe Bollman, was the driver of the truck. The jury acquitted petitioner of contributory negligence and found that the collision was proximately caused by Bollman‘s failure to keep his truck under proper control. Judgment was rendered on the verdict in petitioner‘s favor, but the Court of Civil Appeals concluded that the proper control issue was an improper general submission of negligence. The judgment of the trial court was accordingly reversed and
We granted petitioner‘s application for writ of error to consider the holding on which the Court of Civil Appeals based its judgment. Respondent had a number of points of error there which, if sustained, would have required that judgment be rendered in his favor. These points were overruled by the intermediate court, and the questions presented thereby were not brought here by application for writ of error.
The collision occurred at night on two-lane U. S. Highway No. 62 in the State of Oklahoma. Petitioner was driving north. Ahead of him and proceeding in the same direction were two loaded trucks owned and used by respondent in his business of hauling sand, gravel and crushed stone. It was raining and the asphalt pavement of the highway was wet and slick. The lead truck went out of control on a sharp and dangerous curve about 800 feet north of the crest of a hill. It jackknifed and came to a stop with the trailer in the east lane of the pavement and the tractor on the shoulder and in the ditch to the east.
Joe Bollman, who was driving the second truck, was some distance behind when this occurred. After passing the crest of the hill he saw the first truck blocking the highway ahead of him and attempted to “shut down” his own vehicle. The second truck then went out of control and jackknifed. It stopped at a point about 150 feet north of the crest of the hill with the trailer at right angles to and completely blocking the east traffic lane of the highway. The rear of the trailer was some two or three feet west of the center of the pavement, and the tractor was facing in a northwesterly direction. Before Bollman could get out of the truck, petitioner‘s automobile topped the hill and started down the slope to the north. Petitioner applied his brakes when he saw the second truck, but was unable to stop and skidded into the side of the trailer. He was seriously injured and his automobile was damaged extensively in the collision.
Petitioner alleged that Bollman was negligent in driving at an excessive rate of speed, in failing to apply the brakes on his truck properly, in driving with defective brakes, in failing to keep the truck under proper control, and in turning sharply to the left shortly after he drove over the hill. The primary negligence issues submitted by the trial court, however, dealt only with excessive speed, defective brakes and proper control. No additional issues were requested by petitioner. The jury refused to find that Bollman operated the truck at excessive speed or with defective brakes, but found in response to Special Issue No. 7 that he “failed to keep the truck under proper control at the time and on the occasion in question.” Special Issue No. 8, which inquired whether such failure was a proximate cause of the collision, was also answered in the affirmative. The term “proper control” was defined in the charge as “such control that a person of ordinary prudence would have kept under the same or similar circumstances.” Respondent objected to Special Issue No. 7 on the ground that it constituted a general submission and combined several elements in a single issue. He also pointed out that in view of the specific issues concerning excessive speed and defective brakes, the proper control inquiry was a double submission of these two theories of negligence.
Special Issue No. 7 with its accompanying definition is a typical proper control submission. The issue is undoubtedly quite broad and embraces any and every act or omission on the part of a driver which affects his control of the vehicle he is operating. It has been held, for example, to include excessive speed, failure to apply brakes, defective brakes, failure to place automobile in neutral when it stalled, driving too slowly, and failure to turn to the right or left. See Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Choate v. Meredith, Tex. Civ.App., 330 S.W.2d 548 (writ ref. n. r. e.); Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877 (writ ref. n. r. e.). See also Pope, Broad and Narrow Issues, 26 Texas Bar Jour. 921. When all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266. If it is given in that situation, moreover, the specific findings will control what would otherwise be a conflicting answer to the proper control issue. See Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369 (writ ref. n. r. e.).
Petitioner recognizes that the proper control inquiry is general in the sense that it encompasses a number of specific acts or omissions. He argues that it is sanctioned by long usage, and that there are fact situations such as the present case in which submission of the issue should be within the discretion of the trial court. The facts here are somewhat unusual in one respect. Unlike most of the cases where proper control has been submitted, Bollman‘s truck actually went completely out of control and any want of care on his part was causally related to the collision only in so far as it contributed to his loss of control. These circumstances do not, however, make the proper control issue any less general. And while a vehicle may go out of control as the result of negligence on the part of the driver, loss of control is not in itself an act or omission that might properly be characterized as want of ordinary care.
When a case is submitted on special issues, the court is required to give “the controlling issues made by the written pleadings and the evidence.”
Proper control issues have been submitted in many automobile negligence cases, but no decision has been found where the issue was attacked as a general submission encompassing several specific acts or omissions. While the effect of the issue when given without objection has been considered on a number of occasions, the issue itself has never been approved and upheld against such attack by any of our appellate courts. Professor Hodges takes the position that it should not be given if proper objection is made. Hodges, Special Issue Submission in Texas, § 39. We agree with this conclusion. The usual proper control issue is almost but not quite as broad as the submission in Kainer v. Walker, supra. In some but not all cases it encompasses every negligent act and omission raised by the evidence. Petitioner is undoubtedly correct when he says that its use would enable the trial court to eliminate many specific issues, but this end will be better served by resorting to an even more general submission. If
It is doubtful that a jury of laymen will always understand the scope and import of the proper control issue as it is usually submitted. The jurors may not realize for example, that it should be answered in the affirmative if they conclude that the vehicle was being operated at an excessive rate of speed or with defective brakes. And any attempt to define “proper control” in terms of the specific elements raised by the evidence will probably lead to many reversals that would be unnecessary if negligence were submitted either specifically or globally. It is also clear that the jurors might return an affirmative answer to the proper control inquiry even though they were unable to agree that the driver in question was guilty of any particular act or omission. In the ordinary case moreover, a party who wished to attack such a finding as having no support in the evidence would be faced with an almost insurmountable burden in the appellate court. He should not be required to assume that burden unless he has consented to a general submission by his failure to object. In our opinion an inquiry concerning proper control simply has no place in the charge when appropriate objection is made by the party against whom it would otherwise be given.
Petitioner also says that if Special Issue No. 7 is too general, the fault lies in the definition of “proper control.” He contends that respondent waived any right he may have had to complain of the issue on that ground when he did not object to the definition. There is no merit in this contention and the second point of error is overruled. The scope of the proper control issue was not broadened and could not reasonably be narrowed by the definition, which was included in the charge to avoid the necessity of giving a separate issue inquiring whether Bollman‘s failure to keep the truck under proper control was negligence.
The judgment of the Court of Civil Appeals is affirmed.
NORVELL, Justice (concurring).
In discussing ultimate fact issues we may easily drop into a confused metaphysical situation similar to that encountered when we attempt to distinguish between a fact and a conclusion.1 The rationale of the rule of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517 (1922) is not invariably followed even in the field of negligence law. The accepted method of submitting discovered peril is obviously inconsistent with the Fox concept of “specific acts of negligence alleged and proven,” and this is demonstrated by the issue inquiring if a locomotive engineer “failed to exercise ordinary care in the use of the means at hand consistent with the safety of himself and the train he was operating and the occupants thereof, to avoid the injury * * *.”2
Similarly the issue of the failure to keep a vehicle under proper control is contrary to the argument of the Fox case, but it need not necessarily be condemned for that reason. In Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942) this Court held that the issue of whether a driver “on the occasion in question * * * failed to have his truck under proper control,” encompassed inquiries as to whether the driver was operating his vehicle “at such rate of speed as that he could not stop it within the range of vision,” and as to whether such driver “failed to reduce its speed upon meeting the blinding lights of an approaching automobile.” This Court said that “[t]he issue given (failure to have the truck under proper control) and the two refused (above set forth) related alike to the manner in which (the driver) operated his truck immediately before” the collision and that “[t]he several inquiries under consideration were merely various phases and different shades of meaning of one ultimate * * * fact issue, that is, lack of proper control * * *.”
In Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951 (1944) this Court in effect held that the questions of whether the defendant failed to have the brakes of his automobile in good working order and whether he was negligent in causing his automobile to move to and upon his left-hand side of the highway were encompassed within the issue of whether the defendant failed to keep his automobile under proper control.
The cases of Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266 (1944) and Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143 (1946) hold that when the specific elements of lack of proper control are given it is not necessary to submit the broader issue. In Blaugrund, however, it is clearly intimated that excessive speed immediately before the collision is an element of lack of proper control. In the Triangle Cab Company case it was held that a submission of the “lack of proper control” issue was unnecessary as the Court had submitted (1) failure to keep a proper lookout (2) excessive speed (3) operating the motorcycle too close to the rear of a taxicab and (4) a failure to turn the motorcycle to the left. The failure to keep a proper lookout is not an element of proper control and I do not understand the Triangle Cab case to so hold. The opinion simply lists the issues given and states that all the elements of proper control raised by the evidence were submitted by the specific issues given.
When the Blaugrund and Triangle Cab cases are read with Northeast Texas Motor Lines v. Hodges and Schuhmacher v. Holcomb, a rather definite concept of “lack of proper control” emerges. The critical time involved in the inquiry is that existing immediately before the collision. Lack of proper control at such time includes the following elements, (1) the driving of a motor vehicle in a defective condition which renders it difficult or impossible for a driver to properly control the car under the attendant circumstances, such as driving an automobile with defective brakes, (2) the driving of a motor vehicle at such speed as renders its proper control difficult or impossible, such as the driving of a vehicle at a rate of speed that would prevent the driver from stopping the car within the range of his vision, or by following too closely behind another vehicle, and (3) the failure of the driver to properly guide the course of the vehicle when collision became imminent, such as failure to drive the car either to the right or to the left.
I recognize that the “lack of proper control” issue is global in nature and that there is considerable force to the argument that
So far as the judgment in this particular case is concerned I concur in the Court‘s action in affirming the judgment of the Court of Civil Appeals which reverses the judgment of the trial court. This, for the reason that at least two important elements of the “lack of proper control” issue were specifically submitted, namely, driving the truck with improper brakes and a failure to properly steer such truck when collision was imminent. While, in my opinion, a party should be allowed to submit the broad “lack of proper control” issue, he should not also be permitted to submit specific issues inquiring as to the various elements encompassed within the concept of proper control. This would be obviously unfair. A party would have an opportunity to prevail upon the answers to specific issues and failing in this, contend that nevertheless he was entitled to prevail upon an unsubmitted element of lack of proper control should he receive a favorable answer to such broader issue. A litigant must either go global or specific. He cannot go both ways.
POPE, Justice (concurring).
It is a solemn moment when we overturn a general practice that has been acceptable to the bench and bar for more than a quarter of a century. The failure to exercise proper control has been repudiated as an issue in personal injury litigation though it has become a substantial part of our trial practice.1 I have failed to find any previous judicial criticism of the issue. On the contrary it has been either expressly or tacitly sanctioned by many judges who have carefully considered it.2
It is my judgment that we unduly confuse the bench and bar when we sweep aside a practice that has been approved or condoned in North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Gray v. Newberry, Tex.Civ.App., 380 S.W.2d 22, 23, ref. n. r. e.; Brown v. Vigeon, Tex.Civ.App., 367 S.W.2d 727, ref. n. r. e.; Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369, ref. n. r. e.; Martinez v. Welcome, Tex.Civ.App., 335 S.W.2d 254, ref. n. r. e.; Choate v. Meredith, Tex.Civ.App., 330 S.W.2d 548, ref. n. r. e.; Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220; Anderson v. Garza, Tex.Civ.App., 311 S.W.2d 910, ref. n. r. e.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, ref. n. r. e.; Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, ref. n. r. e.; rison v. King” cite=“296 S.W.2d 344” court=“Tex. App.” date=“1956“>Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, ref. n. r. e.; Serna v. Cochrum, Tex.Civ.App., 290 S.W.2d 383, ref. n. r. e.; Holly v. Bluebonnet Express Co., Tex.Civ.App., 275 S.W.2d 737, ref. n. r. e.; Fullingim v. Dunaway, Tex.Civ.App., 267 S.W.2d 483; Tripp v. Watson, Tex.Civ.App., 235 S.W.2d 677, ref. n. r. e.; Fisher v. Leach, Tex.Civ.App., 221 S.W.2d 384, ref. n. r. e.; Justiss v. Naquin, Tex.Civ.App., 137 S.W.2d 72, error dism. judg. cor.; Hampton Co. v. Joyce, Tex.Civ.App., 80 S.W.2d 1066.
The issue was viable by 1935, Hampton Co. v. Joyce, 80 S.W.2d 1066, and by 1942 it was deemed meritorious enough to receive the commendation of a unanimous court. Commissioner Brewster, in an opinion approved by the Supreme Court, said that an issue inquiring about proper control would excuse other lesser included elements. North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487. A request for the specific issues had been timely made and refused. The court wrote, “* * * The several inquiries under consideration were merely various phases and different shades of meaning of one ultimate defensive fact issue, that is, lack of proper control of his truck by Hodges. Having given such issue once in the form of Special Issue No. 15-G, (control) * * * the trial court properly refused to repeat it twice in other language as carried in requested issues 7 (inability to stop within the range of vision) and 12.” (failure to reduce speed). The court then gave sound reasons for accepting and recommending the issue to the bench, bar, and public, saying, “It has never been the policy of the law to lengthen and complicate special issue charges by requiring trial courts to give issues that merely submit various phases or other shades of meaning of an issue already in the charge. It is required only that each controlling issue raised by the pleadings and the evidence be submitted once, fairly, simply and succinctly. Otherwise, such charge could be drawn out to interminable length confusing not alone to the jury but to court and counsel as well.” With one sentence the court could have condemned the issue, but instead, the court blessed it.
Fourteen months after the court considered Hodges, the Commission and Supreme Court again considered the issue in Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951. Commissioner Hickman wrote, “The finding that his (the plaintiff‘s) failure to keep his automobile under proper control was not the sole proximate cause of the injuries includes the finding that his causing the automobile to move to and upon his left-hand side of the highway was not the sole proximate cause of the injuries. * * * In submitting the issue of whether loss of control was the sole proximate cause the charge did not confine the jury to a consideration of any particular cause of the loss of control, but the issue covered loss of control from any and all causes, which includes defective brakes.” Instead of destroying the issue, as it could have, the court said that a charge which included the control issue and left out other lesser included elements, “fairly submitted the controlling issues raised by the pleadings and evidence, as provided in
The special issue system in Texas, for some time, has been troubled with the proliferation of issues in personal injury litigation. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, properly decided
The genius of the common law is its capacity to solve problems, and this body of law which we have today dispatched, is a classic example. The exercise of proper control, as an issue, admittedly eliminates many other issues. It is doing and can do what nothing and nobody else has been capable of doing. That issue, as Forsyth said of the jury system itself, arose, “silently and gradually out of the usages of a state of society.” It arose, not as a result of overruling Fox, new or amended rules, actions of joint committees or acts of the legislature. It has grown up in the shadow of Fox and until now has been able to gather up many issues and simplify the charge.
It is another example of the capacity of the common law to develop and preserve the jury system itself. In this case it is corrective of the chief problem of civil jury trial in Texas, a surfeit of special issues.
The problems of the special issue charge are those of profusion, conflicting answers, and confusion to the jurors. Those problems did not arise from, nor are they aggravated by, the issue on exercise of proper control. Instead of causing profusion of issues, that issue eliminates lesser included elements. Instead of causing conflicts, it is curative of them. A reading of all the cases which have discussed the issue, shows that the issue has produced no reversals by reason of conflicts. On the contrary, it has salvaged many and harmed none. Unlike other conflicting issues, any claimed conflict arising out of the exercise of proper control issue is resolved by giving effect to the narrow findings over the broader ones. Instead of confusion, it simplifies charges to the jury by shortening them. It reduces the number so the advocates can better argue their cases. Whatever confusion is produced by the issue finds its origin in a trial court‘s unnecessary submission of both the proper control issue and also the more specific elements included within it. The double submission should stop, and it will when this court tells trial judges that they can exercise their own judgments in giving
Every reason which one can give for the elimination of the issue inquiring about the exercise of proper control, can with equal logic be given against the discovered peril, the attractive nuisance and the damage issues, as well as the broad submission of issues in all other classes of cases except negligence cases. Fox v. Dallas Hotel Co. is not violated in any of those instances.
The opinion of the Court of Civil Appeals was right when it gave effect to the specific jury findings over the finding on proper control. That is settled law. When this court goes further and holds that an objection to the control issue kills it and takes all discretion from the trial judge so that he must refuse to submit it, we have closed the door upon our best and last opportunity for the common law to reduce the number of issues and to simplify the charge.
With that part of the majority opinion that totally eliminates the proper control issue upon objection, I respectfully disagree.
Katheryn WHITFILL, Petitioner, v. Elmer Lee HUNT et al., Respondents.
No. A-9994
Supreme Court of Texas
Feb. 17, 1965
Rehearing Denied March 24, 1965