*1 George al., Appellants, Franklin PINSON et ux., Appellees.
Fred DREYMALA et
No. 13331. Appeals
Court of Civil of Texas.
Houston.
Dec. 1958.
Rehearing Denied Jan. 1959.
Barrow, Bland, Rehmet, Robertson & Jerry Houston, Lyons, appellants. and F. Banister, Youngblood Oakley, T. & and Youngblood, Houston, appel- Jr., W. lees.
BELL, Chief Justice. da'mages
This case involves a suit for allegedly Dreymala resulted to Fred an done because automobile, His at the belonging him. time its in collision truck with a Pinson,' by George Franklin driven petition To the filed driven his wife. appellees, an filed exception consisting of an answer and appellees, general The denial. order exception, peti- filed meet the an amended by appelr No further answer filed tion. lants, leaving them an thus with answer consisting of general denial. Trial was jury. before the court without a The court appellees rendered favor for $252.28. made findings its of fact response of law in
and conclusions to the appellants. request detailing Without them, it suffices to that the court found that Mrs. entered the intersec- of Canal and 67th tion Streets on a light. going She was to turn left on 67th Street, she been driving east on Dreymala completed Before Mrs. Canal. turn, signal her left the control on Canal require red turned so as to traffic on Canal stop. However, the driver appel- Canal, truck lants’ who was driving west on stop but did entered the light. a red proceeding west so as allow ter that since The court concluded said, traffic, pass. cleared the intersection completed turn as she started her completing green light commenced *3 turned light traffic Canal had controlling had on light signal Canal turn after the on to waiting to red. When she was no act guilty red, was changed she to next to her turn she the lane five was in traffic further found negligence. It light the the truck center of the street. When part of the the negligence acts of on cleared, red, she the turned the traffic proximate causes driver were the appellants’ truck commenced her turn and collision. light her the struck automobile. She saw Dreymala was Appellants Mrs. contend she as she commenced her because turn mat- a contributory negligence as guilty of up light had looked When turned at it. the keep proper look- a failing ter of law in to red, toward coming she saw vehicles keep automobile failing and in to her out attempted complete her her and she contend proper They also under control. gotten turn. Her had automobile the because be reversed the case should rolling when truck struck her car. The Mrs. erroneously concluded since fender, bumper, damaged collision the front aon Dreymala the intersection entered radiator, side lights right hood and on her completing green light and commenced Dreymala front side car. The left act guilty turn, was of no left-hand she appellants’ came with truck in contact They say of such negligence. the effect right Dreymala front car» side of duty to any her is to relieve conclusion repair The Bob Robertson did the work. requires keep law a lookout whereas the repairs cost of the was The bill $292. keep even such circumstances her under presented paid the was her She $292. lookout. a painting This Paint- bill. included the car. ing necessary was because her car Too, appellants assert action erroneous paint repaired faded and on the new appellees’ allowing the trial court paint parts would not match the old on testify plaintiff’s witness from Parker the balance of the car. a allegedly Exhibit which was Dreymala done on the estimate work her was. When collision occurred car Further, they halfway automobile. there not even the center of Canal. over evidence, or, traffic; alternatively, light When the turned she saw no show the insufficient evidence to it had cleared. She didn’t know where the Lastly, they it was light changed contend from. When truck came $252.28. Dreymala Mrs. she and error to allow to red looked didn’t see the truck damages. complete to the amount of started to her The turn. quite way truck was bound to have been a driving testified Mrs. she was changed light when or would back east on Street Canal her first have seen it. She saw the truck appellants’ City of The driver Houston. hit her car. when The truck was in driving truck west A on Canal. middle lane. The collision occurred at signal is intersection control traffic 3:00 3:15 in or afternoon. The about suspended Street. and 67th It of Canal move her didn’t vehicle but collision a center of the intersection. Canal in the The and car little. truck after the col- enough to two is wide accommodate Street approximately remained in lision the same of the center traffic each side on lanes in at place they were the time of the reached the When line. collision. Streets, and 67th of Canal intersection controlling Cook, appellees, the movement of O. C. a witness signal traffic he green. She was standing entered on the on' Canal west side the cen- of 67th Street stopped about southwest corner the intersection Dreymala’s car question. «of the intersection. Mrs. collision in Each was stopped She enter- case finding in the intersection. where fact been a The light. ed being the intersection issue of its lookout and proximate light changed was, cases, was in to red while she It cause. in those controlling light signal plaintiff intersection. contended that since the began traffic on was red when she legally Canal the intersection there was duty appellants’ truck keep left turn. saw who lookout for those might the inter- and it was be entering 30 or 40 feet illegally. courts, red. light changed however, section when the held there was such *4 duty. testimony, At wit- a point another in the his the
ness stated the back from truck was We been concerned have as to light intersection 25 or when the 30 feet whether we can notice the of wheth matter changed measuring to amber. He was er appellee, Dreymala, guilty Mrs. was The driver where the street crossed. contributory negligence failing keep in miles_ driving the truck 30 35 was proper a proximate lookout which was a per hour. collision, cause of the because the Pinson, truck, George The driver of the plead did not contributory negligence. This testified he when entered the intersection is an pled affirmative matter that must be light green got almost was and as he under Rule Texas Rules of Civil Pro to Mrs. she turned in front of cedure. nothing There is in the record of him. He “hit” brakes into his and slid the case itself that indicates a trial of the Dreymala’s Mrs. 25 car. He was driving except issue of lookout evidence de per miles hour when he “hit” brakes. his veloped, necessarily be, as it would in con He hit his brakes about 15 from the feet nection development with the of all the pulled right intersection. If he facts surrounding collision. There might inches he have missed car. obj no ectiori to such ground evidence on the Cain, George ap- a pleading L. support witness for it. pellants, In judgment saw the the brief motion he collision. shown Dreymala’s first in the statement alleged saw Mrs. car the inter- of facts in failure appellee, Dreymala, light green keep traffic Mrs. prop section. The when a proximate er lookout light intersection. The on which was a cause of the collision is not green when the truck entered mentioned. Canal The first appellants’ of this mention is in intersection. motion for appellees new trial. The brief of seems to This is in substance the evidence in treat the matter as having been by tried con apart from that of Everett L. sent, because the brief seeks affirmation of Parker, man for Bob Robert- ground on the that where an point son. We will notice it at another supported by issue is pleading evidence, opinion. in this or is tried consent without pleading, and Appellants cite us cases which undoubt- is an omission to find a fact or make edly person entering that establish a a street law, a conclusion as to there is a sig- traffic control «request such, will, under Rule duty is not relieved of the of maintain- nal presumed T.R.C.P., be other ing a lookout for vehicles which such fact in omitted a manner sup so toas entering might the intersection even be port judgment. will, therefore, We However, law. none violation of consider there was a of the issue of did the court hold as a matter cases cited contributory negligence by consent. particular facts of under the of law keep cannot as a was a failure to We matter that there case law proximate proper keep failure that was a cause lookout lookout proper made, paint job. There is including he collision cause proximate awas paint job itself to what showing as evidence. by the established testify what does not even cost. She issue. a fact to raise evidence sufficient damaged.- that was she had reason within co.uld the facts The trier show, pleadings are pleadings but the seen Dreymala had she say that Mrs. does not One witness evidence. conclude, as a reasonable truck, could well at showed, the car driven testimony that, person, some as awas Chevrolet. time of the collision per 25 miles being- at driven the truck was light, and approaching a hour red Parker, for Bob L. estimator Everett intersection, the being 35 feet back of Robertson, An re- testified. estimate of least, or, stop, slow driver would The state- pairs a car shown him. complete her as allow truck so show, except for facts not .ment. of does They fail- turn. could have concluded into was not the exhibit which admitted proxi- ure to discover the truck was evidence, the name substantive Appellees cause the collision. insist mate *5 upon which the car of owner of 299, T.R.C.P., be that under Rule it will made, nor show what estimate was does it presumed court, having no that the made make was on. of car the estimate specific finding on this defense and handwriting Mr. on the estimate was not appellants, requested none, signed He He Parker’s. the estimate. support issue in a manner so as to always inspected personally stated he only judgment. presumption This obtains repaired necessary cars to to that the be see finding where has been a ele- one repairs necessary to weré made that were independent recovery ment of an ground of car, put possible, as as back in nearly and an omission remaining to find the ele- shape good as dam- as it before the think,-however, ments. We that failure However, part not age. the exhibit request of findings additional company’s of his records. He testified the of fact effects ground waiver of the of repairs making cost of as shown on defense no element of which has been put- cost the exhibit the reasonable found. McDonald on Prac- Texas Civil ting good car in as state of that tice, rule, Sec. This course, 16.09. ap- " damage. as before testified plies only where some findings of fact have market value of the car would never be been filed because it is well settled above what it increased was before such findings where no have been filed and there damage. It is be noted that the witness is a statement of facts court will be no all stated he had recollection at presumed necessary to have found all facts upon pur- which the estimate automobile support support that find ported made. have been The exhibit was in the In by evidence. this case not re- purely purpose of for the admitted refresh- appel- questing findings of fact additional memory. He ing witness’ stated it independent ground waived this of de- lants all. memory not his did refresh by fense, no element which was found testimony any no these is one the trial court. repairs particular Drey- were to the made testimony There is that as mala car. was no' assert Appellants necessary the collision it was result of support finding evidence repairs. these The exhibit damages. amount up as to proven so be admissible. not testimony as generally, is that the testified The effect signed once part a memorandum of her shown, exhibit above with an connection estimate Parker Mr. She then damaged. to some repairing damages automobile. repairs for for the $292.28 Robertson Bob paid the memoran Parker could GAINES, Appellant, Aaron way dum because it in refreshed not in memory and the memorandum v. evidence, proof was it in the state nor Texas, Appellee. STATE of Peltier, Tex.Civ. admissible. Freeland v. No. 30345. Victory
App.,
404;
Lady
Our
S.W.2d
Co.,
Appeals
Court of
College Academy
&
Steel
Maxwell
Criminal
of Texas.
Tex.Civ.App.,
We have concluded there was finding sustain the court’s
to the amount of damages. exhibit is
in the Facts, Statement of but it was ad only
mitted purpose refreshing
the witness’ recollection. We cannot con
sider it as substantive evidence. However,
We must reverse the case. apparent damages that on the issue of fully developed. We,
the case was not
therefore, reverse remand
retrial. Rehearing. Appellees’ Motion for
On
We remain of the view that damages
will not sustain the found court.
trial ap- rehearing motion for
In their if re we should asked
pellees have proof that there view
main of the damages
supporting the only court, remand we is issue damage issue. asserted and of action
part cause it is held of case this kind Murphey, R. E. Coleman, appellant. piece should not be tried action cause of Leon Douglas, B. Atty., Austin, State’s may not be severance meal. for the State. for trial part the cause of action Texas separately the whole cause. MORRISON, Presiding Judge. Lightfoot, 139 Ass’n Employers’ Ins. v. 929; transportation Fisher v. 162S.W.2d Coastal offense is
Tex. of beer in a dry area; Transport Co., punishment, 149 Tex. 230 S.W.2d jail months in 522; Waples-Platter Co. v. Commercial and a fine of $500. Tex., 375; Co., Standard Ins. 294 S.W.2d stipulated It was Precinct Justice Iley Judge, Tex., Hughes, District 1 of County No. Concho dry area. S.W.2d 648. Terry, precinct, of said Constable Appellees’ rehearing day question that on the motion over- he observed a gray Pontiac ruled. automobile being loaded with