*1 purpose for the testified the by occasion acknowledge him, that she deed. question as to wheth- return to the We now complaint appellants’ er we should consider by the court. of issue No. 1 submitted (Tex. Com. In Robertson v. Vernon 991, S.W.(2d) where no held objections court made trial wore relating to acknowl- issues manner edgment mitted, involved were sub- anof instrument objections first time for the provisions appellate under the Revised Statutes considered. be' judg- expressed, the Eor the reasons above ment is ailirmed. Affirmed. et KINCAID al. LINE CO. v. PIPE
HUMBLE (No. 8195.) Texas. San Antonio. of Civil
Court May 1, 1929. Rehearing
Rehearing Granted June July 3, 1929. Overruled
145
plea
hearing
privilege,
matter of the
of
but no
plea
upon
privilege
was had
time,
of
at this
agreed
by
attorneys
as was
for
it
appellant
appellees
the matter of
hearing
appellant’s
upon
plea
privilege
of
continued,
prejudice
should
without
plea,
succeeding
said
district
next
term of
to the
county;
Uvalde
and said
court of
was
thereupon
hearing
the court contin-
ued.
day October, 1928,béing
of
On the 15th
Lytle,
T. M.
and Nelson
both of San
West
succeeding
court, appellant’s
next
term of
Antonio,
Uvalde,
Martin,
ap-
I. L.
of
for
plea
privilege
appellees’ controverting
of
pellant.
plea
by.
court, and,
hear-
heard
after
Woodley,
Sabinal,
Goeth,
K. IC.
of
ing
evidence, appellant’s plea was over-
Antonio,
Goeth,
appellees.
&
of
for
Webb
San
ruled.
objection
protest
by appel-
No
was made
Appellee
Kincaid,
COBBS,
B.E.
for
J.
day April, 1928,
on
12th
at the ac-
lant
Kincaid,
himself
next friend
E. B.
and as
for
agreement
recognizing
in
tion of the court
of counsel
ing
joined
Jr.,
wife,
Kincaid,
his
Lucille
postponement
the hear-
brought
Pipe
against
this suit
the Humble
any objection
plea. Nor was
occurring
Company
damages
Line
for
to each
1928,
15,
by appellant,
when
on
October
injuries
appellees,
of
tained as
sus-
these
reason of
hearing,
for
to the suffi-
the cause was called
result of a
between a
a
collision
ciency
of service
it of
or manner
operated by
employs
appellant’s
an
controverting plea and
the time for
notice of
by E. B. Kin-
automobile owned
driven
(cid:127)hearing
plea
privilege April
on
the said
caid,
Lucille Kin-
and in which automobile
hearing
day
named for the
first
Kincaid, Jr.,
riding
at
caid and E. B.
plea.
the time of
collision.
1925)
(Rev.
Notice the statute
St.
joint petition
alleged
Appellees
in their
hearing shall
had “until a
2008: A
copy
copy
not be
$8,-
damaged
sum of
E. B.
233.44,
was
Kincaid
including
controverting plea,
a
of such
damaged
in
Lucille Kincaid was
thereon,
shall have
notation
such
Jr.,
$10,000,and E.
the sum of
the sum of
B.
defendant, or his attor-
been
ney,
on
served
each
They alleged
$10,000.
that their
days
day
for
at least ten
exclusive
damages
negligent
were caused
driv-
hearing,
of service and the
after
qf
date
appellant’s truck,
of the
as follows:
plea
promptly
such
which the court
hear
shall
“(a)
said
driven without
Because
truck was
privilege
judgment
and enter
thereon.”
lights.
sufficient
only purpose
.The
of this
is to
statute
“(b)
said
driven
a
Because
at
days’
plea
hearing
of the
notice
speed.
reckless rate of
done,
provi-
the defendant. When
that is
“(c)
said truck was driven down
Because
complied
sions of the statute are
with.
It is
the middle of the
without sufficient room undisputed
days
that notice “for at least ten
pass.
permit
vehicles
day
exclusive of
service and the date
“(d)
Because
driver did
hearing”
given.
Here
brakes in
agreed,
hearing
time to
the truck.
at
be had
the next
“(e)
driver did not
Because
term of
which was done.
drive on
of the road.”
Really,
hand side
necessary in
was not
this ease
it
appellee
alleged
particular
controverting
reply
Each
ap
also
to file a
affidavit to
damages
prayed
pellant’s plea
privilege,
for his own relief.
was it
nor
neces
Appellant promptly
plea
any
sary
its
filed
to serve
character
notice of a
alleging
privilege,
place
properly
of residence or contest. The trial court could have
county,
statutory
plea
domicile was in Bexar
and that it had
notice
overruled
without
agent
upon
plea
ground
county,
county
filing by appellee
any appropriate
in Uvalde
Appellant’s
brought.
plea
challenging,
which the suit was
as was
doné
privilege
24, 1928,
was filed on March
set out.
n
29, 1928,
appellees
appellees
county,
on March
resided
filed their con
in Uvalde
troverting
ing
alleged
affidavit.
where
tort occurred.
The court set the hear
plea
privilege Uvalde, Tex.,
In the
Yates
State
case of
et al. v.
at
p. April
S.W.(2d) 114,
2at
o’clock m.
Ü928.
Civ.
“It
the court holds:
controverting
plea,
early
true
some
cases
with the notice of
that,
hearing,
West,
on M.
Courts of Civil
unless
served
T.
held
attorneys
plea
privilege
appellant,
plaintiff
un
the
record for
controverted
April 3,
1928. At
der oath and
statute,
the time
the time
within
allowed
set
the hear-
ing,
jurisdiction
parties appeared
court, by
Court was
without
before
attorneys,
sufficiency
plea
appellant
urge
their
any objection
even determine the
case;
sufficiency
privilege,
must transfer the
but re
as to the
the no-
all
those
tice
cent decisions
the Courts
served
if in
connection with
overrule
ought
disregard
plaintiff
eases,
the court
to or
shall
unless
and hold
agreement
continuance,
plea
privilege
is as much
within
controvert
part
thing
it,
prescribed,
a
and it.
stat-
of the record as
and as directed
hearing
oath,
fur-
is not denied that
con-
Court is
and under
ute
by agreement.
jurisdiction
tinued
venue
defendant
ther
over
*3
anything
privilege,
except
plea
in
error to
question,
and,
We do not think
of
there
to hear the
by appellant’s proposition
required
that it
was
if
found sufficient
it is
mi-,
permit
father,
mother,
statute,
the
and their
cause in accord-
the
transfer the
to
the
ance
join
against
together
clear,
son
re- nor
to
in
one
the
suit
under the
therewith. So it
alleged
Appellants, supra,
by
of
that
the owner
the automobile
to have
cited
decisions
cent
the
court caused
collision.
trial
the
law
that
the
is now settled
-
determine,
only
multiplicity
The law
suits and
whether
abhors a
of
must hear and
the
ly
multiplicity
plea
privilege
a
action.
time-
of
and causes of
is in due form and
of
accident,
determine",
filed,
the
but
it
Here it is
one
as to
must also
where
but
the
proof
pleading,,
by
We
in
same.
can' seé no merit
the
issue is raised
some authorized
objection,
privilege
legal sufficiency
plea of
it is
We see
overruled.
controlling
nothing comforting
appellant
in Texas
the venue
to
the law
as tested
(Tex.
pend-
Ry.
App.)
Mex.
particular
et al.
Civ.
of suit
Co. v. Lewis
kind or character
sufficiency
by ap
legal
is,
ing';
plea
a 99 S.
or the other cases cited
W.
where
that
objection
by appropriate pellant,
privilege
is overruled.
is contested
thereto,
question
accident,
pleadings,
On
unavoidable
such as a demurrer
proof
guilty
appellant
question
is one determi-
shows that
was
raised
or
plea negligence.
instance,'
solely
allegations of the
For
some of the wit-
from the
nable
out,
allegations
nesses
turn
testified that Kincaid tried to
from the
itself and
petition
-and,
nature, kind,
doing,
character
while so
ear skidded into the
to the
question
pending,
raised
so
truck. Other
that
the acci-
the issue
witnesses show
of suit
law,
has
the Court
dent
ing
caused
truck be-
was
is therefore
jurisdiction
determine,
though
carelessly
the time
to
even
driven at and before
required'
thing
controverting plea
the statute
was no such
accident. There
plea
privilege.
In other
here as an unavoidable
acci-
filed
accident.
be
words,
to
things
stat-
which the
dent
not have been foreseen. Volume
the matters or
could
20, p. 20, Ruling
requires
in
oath
be
under
Case Law. The
to
controverted
ute
a
of fact
tions
things
anguish
privilege
plea
mental
Mrs.'
on account
matters
to
ques-
injury
son,
alleged,
issues or
and not the
to her husband and
about
undisputed
testified,
very
facts which
we
of law raised
she
do not think
ma-
terial, for,
separated,
alleged,
facts
shown
it could be
it would
which are
subject
plaintiff’s pleadings
judgment
be untrue.
to be
to
be
controlled
the
However,
trespass
brought
A suit for tort or
court and
diminished.
county
anguish
Rev. St.
where committed.
allowed no sum for mental
in
1925,
sus-
Wylie
1995, 9; Campbell
al.
§
et
v.
Mrs.
art.
tained
Kincaid as a result
the in-
980;
(Tex.
App.)
juries
212
Chat
Civ.
S. W.
et al.
her child.
Machinery
accident,
regard
v.
Civ.
ham
44
46 S.
Co. Smith
In
E.
B. Kincaid
592;
Aldridge Webb, 92
probably,
v.
Tex.
slightly,
S. W.
“I
testified:
was
know,
there,
got
W. 224.
I
I
15 miles
until
don’t
about
However,
important question arising
my
ready
home,
getting
—I
turn
was
into
grows
road,
pulled
right
I
of the demand that notice of and
here
the
days
out
out to
time,
then, by
hearing
probably
going,
I
had not been
“at
ten
that
was
I
served
least
day
know,
hour,
per
exclusive of
not better than ten miles
of service and the
hearing,
pulled
right Well,
road
I
out
to the
I
date of
after which the court shall
—
pulled
my
my
promptly
plea
privilege
out of the road
hear
such
and en-
judgment
only
Appellant
was
front wheel
off the bank
thereon.”
ter
days’ notice,
edge
gravel
left one was on the
had
but
no-
ten
several months’
my
plea
tice,
priv-
wheel
in
hind
the track and the
before the
heard
left
such
judgment
ilege
track
came
hind wheel was
the center
entered
thereon.
'
case
first
and this
where
When the
for a hear-
called
12, 1928,
judge
ing, April
parties agreed
I
the truck hit me.
all the
speed
approximate
hearing
plea
privilege
truck was travel-
this
postponed,
prejudice,
time was between
and 30 miles
at
next
per
Appellant
hour.
a trailer at-
and was.
term of
only
it
has not
a
it;
provided for,
I
a bed on
do not know
tached and had
had all the
notice
was,
weight
large
Up-
a
but it was
truck.
what
all claims to
has waived
further notice.
April 12, appellant appeared
hit me
the collision
truck that
After
stopped.
on
court
before
place
it,
I was about 100 feet from the
in answer to the
served on
notice
my
by agreement
car was struck to where
where
stopped.
and
next
it,
continued
case to the
succeeding
I
of this col-
went back
the scene
term of the court that heard
day.
following
There were marks
lision the
on October
place
nothing
of this truck
the wheels
the contention that
There
my
where it struck
car—there was
black
The accident occurred
the Sabinal-
made,
Utopia
mark
the left hand
country
being
where the
this truck
wheel
which was a
side,
graveled
slightly
center,
gravel
from
before
over
stopped.
having
it hit the car to where it had
This feet wide
a 2-foot dirt
shoulder on
point
gravel.
mark
black
from
showed
where the each side of the
There was
testi-
my
point mony
question.
truck struck
car backwards
’to
found that
feet,
my
ap-
about 90
90 feet from where
car was
the driver of defendant’s truck
failed
ply
struck.
rear
About
I found marks
where the
there
his brakes and
the truck
my
dug
gravel.
car,
wheel of
into the
avoid a collision with
way
negligence,
half
between the —about
three such failure was
and that such
edge
gravel
feet
was a
was the
cause of the
dug
grav-
mark where the wheel had
into the
collision.
el after the tire had been broken off—what
also found that the driver of de-
*4
Question:
po-
truck,
turning
was left
sition did
of
wheel.
‘What
fendant’s
to
instead of
his truck
you say your
right,
car was in
at the time
crowded
car and did
give plaintiff
it was struck with
not
road,
reference to the
of
half of the
middle
con-
but
traveling
past
road?’
T
tinued
Answer:
middle
the center of the road
thereof,
right
of the road on
and on the
hand
I will
left side
and
side.’
that such
party
driving
operating
manner
negligence,
state that
who was
the truck constituted
my
attempt
truck that struck
and that such
ear made no
was the
City
turn
This
out of the road
cause
before he struck me.
collision. Texas
Transp.
(Tex.
headlights,
they
App.)
Co. v.
Winters
truck had two
were
were
193
Civ.
366;
Hodges
burning,
very bright; well, they
(Tex.
App.)
S. W.
Rowan v.
not
but
Civ.
847;
(Tex.
175 S.
App.)
Bender
dim. At
v. Bender
the time
the collision
truck
W.
Civ.
735;
me,
Glycerin
car,
187 S. W.
American
that struck
Co.
struck our
was trav-
Kenridge
(Tex.
eling
mostly
App.)
et
road,
al. v.
Co.
in the
Civ.
S.
middle of the
but.
295
633;
Craig (Tex.
road,
W.
App.)
prob-
They
Wichita Palls
v.Co.
on the left
and
hand side
Civ.
;
p. 20; Boyles
ably
W.
past
250 S.
R. C.L.
about two feet
the middle.
(Tex.
App.)
past
v. McClure
Com.
243 S.
the middle
the road.
W. 1080.
The left
Clearly
side,
Kincaid is entitled to
recover the
hand
the
east side of the
was on
reasonable value of time
him
lost
from
east
I
side of the center of the road. was
wrongful
traveling
my
business on account of the
I
acts
own side of the road.
appellant;
hospital charges
plenty
get
likewise for
and
turned out in
by.”
for him
time
services,
expenses
for doctors’
and all other
gave
accident,
shown to
such as nurses’
He further testified that he
the truck
have been caused
road,
charges, drug bills, etc.,
than half
as fol-
more
testified
in a
jury
“I
not
lows:
on the left side reasonable amount. The
found -that
collision;
immediately
“reasonably
road
entirely
before the
of the
I was
$900 was
amount
and neces-
right
sarily
by plaintiff,
hand side of the
incurred
E. B.
my
plenty
hospital,
nurses, drug
I
out
doctors,
side.
turned
bills and ex-
road—
given
himself,
penses
if the truck had turned and
me
time
half of the
in the treatment of
his wife
injuries
road.”
and son for the
sustained”
said
testimony
supported
Mr. Kincaid’s
collision.
Appellant’s propositions
VII,
witnesses.
YI
Smith,
arguments
truck that
the driver
well as the
R. W.
statements and
follow-
car,
appellee’s
ing,
considered,
“I
they
testified: was travel-
will not be
struck
because
per hour,
upon assignments
ing
he
wholly
14 or 15 miles
‘based
about
of error
in-
was,
suppose,
I
30 feet from
between
sufficient. Rule 26 of Court of Civil
Rules;
applied my brakes;
1925; Tyler
and see-
I first
me when
Rev. St.
closer,
my
County
ing,
right
I
(Tex.
cut
App.)
as I came
State Bank v.
Civ.
Shivers
go-
the west side
side of the
hand
tion record to en- expressly pro and, being given a manner court to decide the cause its undoubtedly statute, constitut hibited article refers to action Bailey (Tex. Floyd v. M. T. court in Parker reversals. error. ed 5240) S.W.(2d) App. 1033. This No. case should never have Com. been reversed. 1044 — among issues, plain special simple damage following suit, It is a where jury: ethers, person negligently were submitted to ran his truck an- into you injured evidence from the No. 4. “Do find man’s automobile him. It obvious, driven down the is a said case which .truck and without sufficient and the road middle of where there is “sufficient matter sub- * * * approaching cars to to its stance room contained the record to said road?” enable court to decide cause you 10. “Do find the evidence No. merits.” truck, very fully of turn- the driver of instead The court submitted traveling his truck the law in reference to the road give plaintiff motorcars, his half of the did as follows: “Question you but continued the cen- No. Do find from the *6 was, on the left side thereof?” ter of the road and evidence that defendant’s the truck at nega- collision, issue No. 4 the rapid answered the time of the driven at a tive, speed? It is No. 10 in the affirmative. ob- and and reckless rate of ‘yes’ (Answer no.) are identical in ef- vious that the two issues “Answer ‘no.’ or — consistently fect, they “Question you not that could No. 2. If have answered diversely. By answering question ‘yes,’ foregoing the first answered then the er such state wheth- appel- negative, driving the the found that negligence, in lant’s truck was not truck being driven down the that term has defined. been (cid:127) roadway, gave ‘yes’ that it of the suffi- center “Answer “Question or ‘no.’ roadway appellee’s its for car to negligence, cient to left No. Was such 3. if safely pass. pleading any, proximate or evi- As there was cause of the collision? being operated ‘yes’ the truck was dence “Answer “Question or ‘no.’ roadway, left of the center of the this find- you its ing Do No. 4. find from the completely that it was on the center not evidence that said truck was driven any charge appellant from exonerated down the middle of the road and without upon appellee’s side the road- approaching it encroached sufficient room to left way. pass cars to road? on said ‘yes’ (Answer no.) above, quoted “Answer or ‘no.’ Under issue No. — “Question you turning No. 5. If have found his answered “instead truck to question ‘yes,’ foregoing right,” appellant’s plain- the whether then driver state “crowded operation plaintiff give or not such tiff’s car and did not the the truck his half of negligence, as that term road” has been and “continued de- you. fined to center of the the left road and on side there- ‘yes’ findings of.” The two “Answer ‘no.’ are therefore in direct “Question rendering negligence, and al. The the conflict, obvious No. Was such both 6. if ineffectu- raised any, clearly proximate involved was cause collision? evidence, ‘yes’ . “Answer ‘no.’ entitled to . “Question definitely you consistently have it Do No. find deter- 7. from the mined. evidence to driver of the truck failed Many questions presented apply stop by ap- other are his brakes and his truck in pellant, upon plaintiff’s hoped that, by avoid it a collision car? another trial simplified ‘yes’ pleadings, (Answer yes.) clarified and “Answer or ‘no.’ those — questions may “Question you be eliminated 8. If the case. No. have answered Appellant’s propositions, ‘yes,’ foregoing question other than those dis- the whether or then state cussed, therefore, overruled, upon will be not failure to not such his they their merits, negligence. but because have become brakes and his truck was appeal, ‘yes’ (Answer yes.) of reversal “Answer “Question or ‘no.’ immaterial view — upon grounds. you find from No. Do 9. liability any, exculpate negligence, would him from if such evidence that the deprived right through not verse swer to understand the rule ant is entitled to proximate an ad- the an- collision? cause issue, finding (Answer yes.) ‘yes’ some other ‘no.’ “Answer — him We “Question you from the render _ Ho find liable. No. 10. truck, in- defend- be that such the driver evidence that any turning material issue truck to the have stead submitted, theory give defense not but that did car and the above, justify, not the sub- law did as shown plaintiff traveling hut continued his half already by the found and mission an issue road down the center jury.' thereof? the left side clearly pleadings (Answer yes.) and the evidence ‘yes’or ‘no.’ “Answer — ‘ you “Question show amount reasonable substantial incurred have answered If No. 11. ‘yes,’ damages expenses re- foregoing then state of the whether sufficiently They operating the sult the accident. manner or not such proved. plead negligence. truck was folly say (Answer yes.) or error It is harm ‘yes’or ‘no.’ “Answer “Question — jury, coming negligence, into resulted act such No. Was together all and one the courtroom any, of the collision? cause asking (Answer yes.) “What ‘yes’ members does ‘no.’ “Answer “You — collision, term, mean at the does of court burden instructed that are impact?” which plaintiffs mean at the time of proof establish answered, foregoing the court “Yes.” each and all affirmative of difference, preponderance under the circum- questions by evi- What stances, between oral conversation dence. question? plain “Question that no you a harm was done nor It is too written from the find No. 13. Do committed, I plaintiff, error B.E. that the evidence approaching opinion. express my truck, find no words to not did defendant’s keep right a better scholar than writer take's not did turn distinguish an- and to the claimed conflict side the same No. 10. In No. 4 it to No. 4 and its half on swers to defendant’s asked, traveling striking driven down mid- .road, Was the left but continued the side of the truck? (cid:127) room road and without sufficient dle defendant’s road until cars to to its said road? “Do the ” asked, (Answer no.) ‘yes’ And in No. or ‘no.’ “Answer — * * * you copy questions the driver find after No. doWe truck, turning his truck to they instead material here. right, give plaintiff *7 not requested did appellant crowded the sub- It is true that road, his half of the but con- unavoidable of a accident mission so-called traveling (cid:127) issue, tinued down the center of the in connection then asked the court special instruct left side thereof?” These issue to with the charges an is such The first an unavoidable accident” harmonize. is with refer- “that unforeseen event, misfortune, appellant is driving act as ence to middle any negligence road, appellee, miscon- not duct of result without reference to but error, party. defendant, is it was either adverse Such No! asks “instead turn- findings ing plaintiff’s directly to facts and the his truck jury. give plaintiff de- found that The car and did not his half rapid road, at a but continued down the cen- fendant’s truck driven driving speed, and ter of road and on the left reckless of the driving side thereof.” rate of (cid:127) Again reverting clearly negligence. an to acci- truck was unavoidable It dent, part appellee’s proximate collision, adopt argument: a and the we cause of very They negligence. place term “In the first ‘Accident’ the truck was according veys accepted legal to its definition it was driven in the con- found the for They middle happening idea of a room to occurrence sufficient could not have cars to said road. which been foreseen. R. C. p. 20. If by to vol. the occurrence could found driver truck failed L. reasonably prudent a have person brakes and in time been foreseen happening was not a an ‘Accident.’ to avoid collision car. case, appellant’s truck, questions In the driver and answers show this The there doubt, pertinent without seen the could and should have fore- stated that made no fact collision, accident, and, no other conclusion be can issue of an unavoidable when logical, submitted, was not in issue was it seems to occurrence be ‘Accident,’ (cid:127)keeping catching word an at in sion sense a colli- with other issues— negligence, resulting from some one’s be Such an can straws. introduced every an that some 'one the of found be the driver case of automobile accident. enough correctly appellant’s is truck. is not rule is not when it stated say did think the to have submit- that because driver not said a defendant is entitled ted every pleaded not could collision would the same fact which if found true occur him, possibility agree any- writer foreseen have been cannot thing ap- “completely and because here a collision was foreseeable exonerated pellant.” the truck driver involved did not believe same If undoubtedly probable reading case. A not alter careful does this record convinces foreseen, as me than have been more noth- the collision could ever that there is in it a have been one could call a most reversal. The case was reasonably prudent enough carefully person, tried, and, independent it is Rule "say 62a, foreseen. it was not affirmed its merits. governing majority opinion, true “The test of this I dissent from matters my original my opinion is set forth in the case Wichita tender nature as and this Craig (Tex. Falls Traction Oo. v. Civ. dissent. 250 W. ‘The rule is S. follows: tending is evidence to show that unless.there the controversy, charged accident which negligence of to have resulted from the 3251.) (No. HARKEY et al. v. HINDMAN. happened defendant unknown from some cause, in a ex- manner cannot be Court of Civil of Texas. Amarillo. plained, or under circumstances different June 1929. part constituting from those relied on and of Rehearing July 10, Denied which circumstances charge alleged negligence for rebut responsible, which the defendant then incumbent the trial submit the issue of unavoidable accident a defense, proper submission addition to contributory negligence of the issues parties negligence as suit.’ to both “In this case the issues contributory negligence as to both jury. The evidence were submitted to the clearly collision have could shows that injuries foreseen. That sustained been by appellees were the result of appellant’s negligence of driver truck. of a collision reason That cause occurred namely: known, negligent well stop or truck driver to failure appellees un- half charged by appellees der circumstances pleadings. in their perfect exam- case to is a “This mind our ple an automobile collision suit wherein theory is not unavoidable accident being completely involved, dis- the same * * * *8 proven pelled by the facts. of all of as- “An examination error, supposed signments support which are proposition six, re- number will single of said that not flect the fact assignments attempts to state wherein assignments All deficient. evidence are fatally au- under the numerous defective by appellees in their brief thorities cited assignments pages If de- 35-36. proposition fective, fall, must based thereon proposition valid there can be no proper assignment which it rest, proposition aid cannot must assignment. All defective add to any law, supported by this is settled be- And do not of authorities. we number lieve that au- has the Court thority to exercise discretion in the matter, but overrule the bound to as- propositions attempted signments thereon founded.”