*1 927 except opinion for the injury re which he by Judge German Therefore, Case, injury to make ceived. was a con seem to us in the Burnett tributing cause of his case at bar.” death. It did not the facts of the controlling on cause, have to be the' sole if said and even can case the Court In the Jackson rain, major employee by death, cer was wettings of his if of an cause successive contracting injury cold was a contributing cause and in his resulting brought receiv- about his death pneumonia, constitute the at an earlier time did not injury” “personal occurred, ap than it would “injury” or otherwise an have ing of pellant can recover pre-existing Com- meaning the Workmen’s within case is no defense. pensation It is admitted in the cancer Norwich In Act. Union demnity Smith, in- v. Tex.Com.App., did receive Co. that the deceased 12 bar 558, affirming meaning Tex.Civ.App., the Workmen’s S.W.2d 3 S.W. within 120, 2d certified Compensation Act. answered 117 Tex. 103, 403; 298 S.W. Indemnity Millers’ Un goes case no further than The Jones Schrieber, Tex.Civ.App., v. derwriters 240 committed where deceased hold (error refused); 963 Employ S.W. Texas suicide, was an inde- such suicide willful Jimenez, ers’ Ins. Ass’n v. pendent causal con- agency, breaking the (error 267 752 dismissed); S.W. Traders employee injury to the nection between Watson, Ins. v. General Co. Tex.Civ. employee’s death. App., (dismissed, 131 1103 judg S.W.2d correct). ment present sup My view case is Gulf,
ported following by the cases: Col respectfully I opinion dissent from the Deen, Railway & Santa Fe Co. v. orado majority. 933; Tex., Employers’ S.W.2d Texas 312 Smith, Tex.Civ.App., Ass’n v. Galves Ins. refused; 1951, 234, 235 S.W.2d writ
ton Walker,
Trinity Ins. Co. v. Tex. Universal Austin, 308; Travel
Civ.App., 203 S.W.2d Rowand, Cir., 1952, 197 F. v. TRANSPORTS, Appellant, Ins. Co. 5 INC., ers UNION Chism, 283; Mills v. 2d Dundee Woolen v. 126, 628; 1949, 219 Welch 215 Ark. al., Appellees. et I. BRAUN County, N.J.Super. 422, A.2d v. Essex No. 3379. 779; 184, N.J.Super. 787, 70 A.2d affirmed Dependents Pine Dixie Products Co. v. Appeals Civil of Texas. Court 595, 589; Boyd Miss. Bryant, 228 So.2d Eastland. 10; 272, Young, 193 Tenn. v. Aug. 1, 1958. Co., Taylor v. Mansfield Hardwood Lumber Rehearing 24, Denied Oct. 360; Mooney 1958. Copper La.App., 65 So.2d v. Co., Range R. Mich. 27 N.W.2d Opinion Supplemental Oct. 1958. Shipyards Lawson,
603; D. Charleston Rehearing Denied Motion Second F.Supp. C.S.C., 141 764. Nov. 1958. Rehearing Nov. Denied Further Appellant entitled the evidence light most favorable to construed jury,
findings of the and when this is done sufficiency doubt can be no about the
there It is the evidence. true that the doctors Levy Jacoby going Arthur
agreed that die, every this is true human be ample there is show
ing, but Jacoby would have died at the time *3 House, House, Mercer D. Cun- *4 Antonio,
ningham, San appellant. for Moursund, Ball, Barrow, Bergstrom & McGown, Antonio, Rosson San pellee.
COLLINGS, Justice. suit brought by This was Braun, individually and as next friend children, two minor Charlotte Braun, against Allen Union Transports, Inc. Plaintiffs sought damages mother, for the death wife of their Haysel Braun, Braun, and Charles Richard brother, their minor son and occasioned a belonging collision between an automobile transport to Charlie I. Braun and truck belonging to the defendant. defend- The against plaintiff ant filed a cross-action Charlie I. damages alleged Braun for transport have been sustained to its truck complete and for the loss the full load of distillate carrying. crude which was The case was tried before a which found Woodward, that Don of the de- driver question, truck fendant’s occasion in guilty negligence of certain acts of proximately collision, caused the Braun, that Charles Richard driver automobile, any not guilty the Braun negligent acts which the defendant proximate the col- causes of judgment lision. Based the verdict plaintiffs against rendered de- for a total $129,638.50, amount of fendant it was decreed that the defendant take nothing its cross-action. Union Trans- Inc., ports, brought has appeal. this This damage suit filed case and Don Wood- against Charlie I. ward Braun were con- together and tried solidated the court case has The below. The Woodward also rule well settled that the find ings of'a jury separate and the of a appealed, appeal trial but court will not be set if there is aside case. appeal in the instant from the distinct probative support force Davis, The which is the basis of thereof. collision Cavanaugh v. 10, 1956, twelve July 972;
suit about Ortiz, occurred on S.W.2d Woodward City Antonio ; San 150Tex. miles south of 286 3-B Tex.Jur. the intersection Highway near At Road. the time Adkins-Elmdorf voluminous, statement of facts is just prior the collision comprising fifty four hundred more than Woodward, appel- driver, driving truck pages. In order to confine discussion northerly transport direc- lant’s truck attempt reasonable length, will we de- load with a full tion Antonio toward San tail the evidence in of the verdict Ford automobile crude distillate. in as brief pos- and summarized form as traveling south belonging to Brauns sible. speed at Concerning the only occupants of Kennedy. toward ques- Woodward operating the truck *5 Haysel Braun and the were Mrs. Braun car tion, the witness Watson testified that im- Braun, deceased. both Charles Richard mediately prior he had to the collision been truck, appellant’s Woodward, the driver of following the miles it truck for several the col- eye actual only was witness to the proceeded San northward toward Antonio. testify. As lision was who available He stated actually that see the he did not jury that indicated, the found heretofore hilly country collision the was because acts numerous guilty of Woodward was and there south of a hill to the was proximate causes negligence which him point between the and the collision specific neg- acts of of the collision. which Watson obstructed his view. was were: Woodward ligence against found operating a Cadillac automobile testi- im- time of and that at the Woodward fied that he for driving several his mediately prior collision drove the speed steady, miles at a of 65 constant speed exces- truck which was a rate of at hour; per first miles that he noticed circumstances, failed he sive under the the truck it mile ahead when was about a lookout, keep the keep failed to proper of him and three miles south about two or control, he and that proper truck under point of the He stated of the collision. the center line of the drove truck across the that from the truck the time he first saw of the road. side road his left-hand until the time the collision he had been slowly gaining on that in the truck his first and appellant’s It is contended opinion traveling the five to ten truck was erred in not the court points that second per miles hour than he was. The slower in-' for an motion sustaining appellant’s testimony effect of was that in Watson’s judgment non verdict structed opinion Woodward driving was the Appellant contends obstante veredicto. speed truck at a per to miles hour. any negligence there no evidence was agree appellant’s cannot with We conten- proximately causing the Woodward testimony tion Watson’s the Appellant its urges in the fatal collision. speed truck over two or three points and in numerous first and second mile stretch that he followed it constituted points that there was no other evidence premise an uncertain such as- to amount to authorize submission to the Appellant’s to no evidence at all. com- special inquiring issues about the applicable plaint weight of this tes- or that negligent acts such acts timony probative rather than its value. were, jury, proximate as found caus- to the We cannot There evidence effect agree the collision. es collision Ford time of the points. at auto- contentions these . -proceeding at collision there mobile owriéd tillate the time. After the per speed at hour. or four feet south miles trail three SOto 55 distillate practically over the center the west side Ford car demolished line and on highway, left collision is evidence to which and there was Woodward’s transport road, effect that hundred feet after the side for over three collision point truck distance of traveled an additional before terminated near large rolling about 150 feet over. The collision several over and where there were puddles pavement. evidence further truck shows that the discolored the automobile, separated damaged al- trailer became the truck and were Both and the Ford scattered, they badly total loss. came though up to such an were a torn extent only probative This evidence had force on the west road. wit- rest side of the following speed at which ness Black testified that automobile; operated being immediately truck was but also Ford behind the by the being traveling- control which was exercised that the Ford was all times Distributing Transport driver. proper Universal lane of west side traffic on the Cantu, Co. actually see highway; he did (Writ. Ref.); 61 Vehicles day Motor hot the collision because § C.J.S. 516, p. 270. eyes a moment took his off road instant the wipe his and at that forehead collision that after occurred. He said
In addition to the above turn- and trailer collision he saw the truck speed concerning the truck Wood completely they were over at which time equipped ward testified the truck was that he highway; on the west side device for with a tacometer was a *6 of any that side the them come rest on speed saw making a at written record of its partly partly highway on the shoulder Appellant produce the given time. failed so close pavement. the was of the on Black its evidence tacometer with recorded from the distillate man the scene of collision that speed explain of truck or the sprayed was dis- car. There the trailer produce in evidence. ner its failure to same it trailer the tillate or fuel oil the where appellant produce around fact that failed to The collision so rest. the explain to do came to Sometime after failure tacometer or to the leaking out of the distillate probative force crude was strengthen tends to the still other, the running trailer and down the side upon the bearing evidence highway. truck, itself speed the is of the Ha probative question. force
some The damage to the front end the Naranjo, Tex.Civ.App., 184 S.W. zelrigg v. supports two vehicles the conclusion that ; Gray, (Writ Ref.) State the left front fender left side evi of the opinion the 224. our In bumper of the right truck struck the jury and front supported the findings the dence portion of the Ford upon bearing the automobile. Also indic the of the court fact ative of this was evidence to the appellant’s truck effect speed the issues paint that blue similar to that hour, on the Ford per miles being excess on car was found the circumstances, bumper front of the being excessive under the physical The truck. facts also indicate that the collision. proximate cause of and as a proceeded the blow to the Ford Inc., from the System, Bus Biggers v. Continental left right the side of that Tex., automobile tear shearing ing the motor loose. There jury found that immediately prior the effect that was the bumper collision Woodward the operating higher ground of the truck was off the than pellant’s truck across the center line car, of the of the the frame Ford and the frame did upon highway and his left-hand side of appear the to materially damaged. The truck road. was loaded with crude dis- heavy objects motor radiator and other complete- course, depend Ford were upon the front end of the speed the truck of the ly separated mountings on from their and of the Ford automobile. The evidence evi- as a result of the collision. indicates that frame traveling Ford was at they speed supports dence the conclusion of from As per SOto 55 miles hour. easterly di- previously indicated, knocked to Ford’s left opinion it mark deep gouge rection. there There was appel- evidence to the effect east feet pavement approximately five lant’s truck being operated speed in at a and in highway of the center line of the excess of per 45 miles hour. Dr. Tonn tes- theory appellee’s north It is hound lane. tified that a two speed minimum total supports the conclusion and the evidence vehicles of per 70 miles hour have made deep gouge that this mark was resulted in knocking the motor distance pave- motor of it struck the Ford when five feet. supports Since the evidence dug line ment. curved There was also a speed conclusion that minimum total pavement to where gouge from mark of the two vehicles was of miles in excess hour, to rest on per the motor of the Ford came could well have believed expert Tonn, Dr. west side of the road. that the motor than five was knocked more appellees, testified witness called feet from point impact it before point been the gouge mark not have deep could struck pavement point at the col- impact a true head-on there gouge unless mark and, therefore, appellant’s truck could He stated that there being operated lision. the center line across damage because the pavement been a head-on collision time of the collision. damage that not the kind to the Ford was colli- We also appellant’s a head-on overrule from fifty- would have resulted point second testi- truck. He it appellant’s large urged sion with in effect impact the court erred in point of opinion the overruling objec fied that in his tions to Dr. testimony Tonn’s the truck automobile upon Ford based assumption speed fifteen feet to west between five truck at the pavement. time of in the mark collision gouge south of the was 50 fifty- per Appellant miles hour. number appellant’s point contends We overrule was error in al- to allow court erred one to the effect calculations based *7 speed opinion assumed of testify fifty per to his miles lowing Dr. Tonn hour be cause there was five no impact probative evidence occurred between of the deep force to the show the truck west of traveling was in fifteen feet to the south speed this objection excess of the limit Appellant’s per of 45 gouge mark. miles un- hour at the time of the pre indefinite collision. was that it was As testimony testimony viously noted there opinion was in certain; Dr. Tonn’s am under ple impact to evidence to possible for the the conclusion that appellant’s being operated truck of center was ex on either side the in have occurred per of was cess 45 miles hour or highway and that the matter even much as line of the sixty per jury. The to 65 miles speculation of the hour. up to the left testimony this fact issue to which ultimate appel- was or not amply whether
was relevant sufficient the operated present across being was fact lant’s truck issues for determina immediately prior questions highway the on speed line of tion the of the center at which collision. The of operating truck, time of the distance was the Woodward the wheth impact gouged place from the of not the truck point being operated er or was the on was material pavement wrong highway, a deter- side of the in the failure question. keep proper of this mination amount of of Woodward lookout and the Ford by keep proper which was with struck the truck under force control. The also a material evidentiary testimony truck was opinion of Watson concerning the fact, would, amount of force and the speed upon of the truck was based his was
knowledge speed together he solidated and tried suit of the at which with the Braun, comparison Don operating against Woodward his automobile and he, in speed appellant’s damages for sought truck which which Woodward personal was injuries the rear and approaching from him sustained probative probative Likewise, of sum of testified Woodward had force. concerning injuries alleged was the evidence force on these issues pleadings. in his physical scene testified that he did and conditions He facts im- not work force for four and one-half months after including collision 10, pavement 1956, July only pact, and that the reason he deep gouge mark connection testimony during period did not work and the of Dr. Tonn be- rel- therewith, injuries he sustained traveled cause which the distance places resting the accidental Braun auto- ative final collision with the location mobile. ad- the truck Ford automobile In connection Woodward motor, questions trail distillate mitted answer to from and the highway. pellees’ attorney examined left on the west side of that he had been findings supported day Dr. Omer Roan after the acci- evidence also actions pictures x-ray each the above described dental collision and that negligence and supervision Woodward constituted taken under the of Dr. Roan proximate cause physical damage to any injury act negligent each show Smith, 142 Tex. the collision. v. at that It this con- Collins Woodward time. was in Company v. 407; sought Road appellees Austin S.W.2d dition the record 878; Willman, Tex.Civ.App., 303 from obtain an admission Woodward Chapman Evans, period during the reason he did not work (RNRE). claimed S.W.2d 827 was not because of
injuries drivers license but because his prohibited by been cancelled that was points and 35th In 34th driving ad- law from his truck. Woodward allow it is erred contended July cancelled on mitted that his license was introduce, objec plaintiffs to pver that that but denied was the rea- tion, plaintiffs’ number ten exhibit son he did work. Woodward was copy voluntary of drivers waiver of a n licenseform signature shown and admitted Don signature of bearing the license form and waiver drivers there- Appel July dated Woodward and that instrument introduced in evi- of tes complains lant admission also plaintiffs’ over exhibit number ten dence (cid:127) timony proceedings before objection appel- and of Woodward Safety re Department Texas of Public *8 lant herein. gard of Woodward’s cancellation ap objection by made drivers license. The ten Exhibit number and the evi pellant to exhibit evi number ten and the clearly therewith dence connection were in connection dence therewith by against admissible in the suit Woodward ques matter occurred after accident in Braun; appellee request, no how
tion, it was a matter between Wood application ever, to limit was made Department Safety ward and of Public n the evidence. Under these circumstances prove any did not facts about the acci appellant complain cannot now of the ad dent, prejudicial it that was and irrelevant ten number evi mission exhibit to any immaterial issues in the case. Sears, in connection therewith. Roe dence Appellant’s points Jones, 34th 35th over- & Co. v. are buck 303 Marshall, Material a consideration (RNRE); 432 Armstrong ruled. these S.W.2d v. Civ.App., the fact that this suit 250; is points Brauns 146 S.W.2d King Tex. Inc., against Transports, Morris, Tex.Com.App., Union was con- 1 S.W.2d v.
935 Ry. 372, 36 and appellant’s points numbers & S. A. 90 Tex. Co., In 38 S.W. re 745; Ry. the court erred Fort Worth & D. Co. v. 37 it is contended C. spe requested Kimbrow, 117, appellant’s 131 Tex. 112 S.W.2d fusing to submit Woodward, 712; six Foster numbers five and v. Tex.Civ. issues cial App., 417, emer plea of sudden error defensive S.W.2d refused. requested and properly may But it special issues be as a de gency. The invoked de therewith fense to a charge negli in connection of primary instructions proper “emergency” gence. Ry. term Dallas fining the Terminal v.Co. however, hold, 414, the court Young, Tex.Civ.App., form. We is such refused; Rainboldt, refusing to submit error not err Schroeder v. not they were 269, 679, because 128 Tex. (ap sues to S.W.2d proval per the evidence. raised lower court’s holding mitting submission of issues on defend negli findings a case Usually in tort emergency.) ant’s sudden In in either or its em defendant gence of a it legal stance is to lower invoked proximate cause ployee is a party standard of care must ex plaintiff is injuries plaintiff’s point ercise to where conduct which contributory negligence any act of guilty of might regarded negli otherwise as for the support are sufficient gent contributorily negligent or is immi However, plaintiff. doctrine regarded.” (Emphasis so ours.) emergency some is peril or sudden nent óf charge to a as by appellant a defense The evidence relied times invoked v. of Goolsbee the issue emergency In case raise of sudden negligence. 528, 243 Co., following testimony N. R.
Texas &
O.
truck driver
Hickman,
Chief
Woodward:
S.W.2d
Justice
Court,
Supreme
discussed
speaking for our
Well,
coming
“A.
I was
fol
stated
length
this
load
came
and when I
over
lows:
seen this
grade
good
I
It was
car.
*
**
ways
me and
is written in the briefs on
in front
I
“Much
*
**
it was
hill
‘Liability
don’t know
not a
subject of
doctrine
under
respondent’s
I
peril.’
up
little
don’t
grade
It is
but
know
imminent
cars,
passed
of imminent
he
those two
whether
theory that ‘the doctrine
not,
liability.’
little on
wrong
he
peril
basis of
but
was a
principle
is a
over,
opinion in
side but he came back
expression
in this court’s
An
to be
everything
going
looked like
Tex.
Browning,
Beck
right and
when he
all
then
back
came
to lend
seems
straightened up.
just
up
I
over
let
imminent
the view
the doctrine
just
got
me it
gas
before
liability.
peril
a basis of
we
While
* * *
I
know
looked
like.
don’t
the decision in that
fully agree with
happened.
just
He
in-
right
what
cut
case,
accept
are
re
unwilling
we
jerked the wheel
and when
to me
I
theory
an established
spondent’s
jerked
that I
he did
brake.
hand
principle in
court. The doctrine
*9
lock
brake
the
hand
will
trailer
The
in
is one which
be
peril
may
imminent
wheels;
and
stop sign
there was a
conse
party
a
to relieve
the
voked
of
the intersection
at
car
conduct,
there
and a
his
which otherwise
quences of
sign.
that
I
stop
negligent.
held
It
of
at
had
think
is most
was
would be
miss
too.
I did
charge
as a defense to a
of
him
a head-on
ten invoked
about
his
get
International
could not
out of
contributory negligence.
way
but I
and
(cid:127)
Neff,
five
and
or five
a half
R.
feet
R.
v.
he
N.
Co.
& G.
Galveston,
center line when
283;
H.
the
collided.”
over
28 S.W.
Jackson
so highly
This evidence does not raise
issue
excessive
a fact
and unreasonable
emer-
that
by
the doctrine
sudden
the
involving
show
was motivated
passion
prejudice
and
in
gency
pleadings
evidence
utter disre-
under
gard
That
invoked
that
may
case.
doctrine
be
court
consequences
in
party
erred
on the
entering judgment
relieve a
verdict.
Appellant
his
complains
cases
emergency
portion
conduct
which
also
negligent.
judgment
grant-
be
based upon
otherwise would
held
the verdict
or
testify
Charlie I.
for the
witness
Braun
death
Woodward did
son,
his
his
admit
conduct on
Richard
negligent
Charles
Braun.
evi-
part
appellees
and other
which
The mere
fact
verdict
He,
times, contended
dence
showed.
all
large is not
it is
conclusive that
the result
emergency
confronted
he was
of passion, prejudice, sympathy or other
automobile
the Ford
driver of
considerations not
in the
found
evidence.
wrong
side
approaching
him
116, p.
Death
1270.
rule
§
road,
then
C.J.S.
automobile
concerning excessiveness of
verdict
a
straightened up
to its own
returned
such
is set
cases
out in 13
right-hand
just
side
then
before
Tex.Jur.
272, as follows:
right
collision “cut
into me”. This testi-
mony
appel-
not entitle
Woodward does
“It
general
well settled
rule
lant to
excuses
invoke
doctrine which
that where the law
legal
furnishes no
negligent,
action
be
would otherwise
damages,
measure of
they
un-
are
because
circumstances
it was done under
liquidated,
be
amount to
awarded
requir-
arising suddenly
unexpectedly,
largely
rests
the discretion of the
ing an instant decision to avoid
effects
jury;
large
and unless the award is so
danger.
contrary,
of sudden
On the
as to indicate that
it is the result of
testimony
effect
is that
Woodward’s
passion, prejudice
corruption,
driver
negligent
part
action on the
disregarded,
that the evidence
has
Ford
cause of
automobile
their verdict
is conclusive
will not
Woodward,
he,
the collision
be
set aside as
either
excessive
negligence;
guilty
no
observed
or on appeal.”
trial court
negligent
conduct
the driver
danger
conscious of
in-
Ford and
The evidence shows that Mrs.
it,
volved and
his best to
but he
did
avoid
Haysel
years
Braun was 37
age
at the
testify
might
does
to any
action which
death;
time
she
of her
had been married
ordinarily
negligence
be
on his
considered
appellee
since
Charlie I. Braun
Novem
appellant
seeks to
ex-
ber,
Prior
to her
1936.
accidental death
perilous
cused because of
situation un-
had
Mrs. Braun
life expectancy
of 38.41
der
acting.
which Woodward was
years
appellee
I.
Charlie Braun
not err in
refusing
submit
years.
expectancy
life
of 31.17
Under
pellant’s requested special issues numbers
right
these facts Braun’s
to recovery was
to the jury.
five and six
upon
limited to and
based
own life
expectancy. Humble Oil & Refining Com
the verdict
Based
answer to
Ooley, Tex.Civ.App.,
pany v.
questions
the loss
sustained
appellees
each of
result
of the death
Haysel Braun,
of Mrs.
The evidence showed
en-
Mrs. Braun
tered for
housewife
good
sum
was a
and mother
and that
$65,000, for Charlotte Braun in
in the
the sum
home was
everything
under her
$25,000.00 and
supervision;
Allen Braun
charge and
the entire
*10
in the
Appellant
sum of
in
family
the home
contends
worked
and that she
work;
the answers to the damage
supervised the
issues are
for several
money by
she
earned
reason
years
had
death
worked and
is not
of his wife
employed
two wholly
had
for
lacking
been
about
in
of evidence. It
sys-
is not
years by
Kennedy
completely
Public School
out of line with awards
tem,
work;
upheld
she was
doing
Although
secretarial
other cases.
large, we
but
say
off work
the time
the accident
cannot
it
at
is so clearly excessive
about the
to
to
passion
would have returned
work
as
indicate
or prejudice. We
do not
August.
earning
middle
She was
feel
that it
jury
can be said that the
$1,100 per
working dur-
year
trial
proximately
guilty
an abuse
prior
year
nine month school
discretion
ing
finding
judg
in.
entering
from
for the school had earned
ment for Charlie I. Braun in the sum of
working
$1,100
$1,300
year.
working
per
Her
Hope
see
Also
Rowan &
Vala
dez,
in the
hours
the school
8:30
at
were from
the meals and then weekends did abuse of discretion. The evidence showed necessary cleaning, and other washing that Charles Richard Braun was honor to Sunday went chores. She School student highest fourth making grade in children, basket- her attended football and his high graduation school class. His from games athletic ball other events high just prior school was a few weeks ways companion other her hus- his death and he received had a scholastic and children. band
scholarship
Shriner Institute. The evi
indicated,
always
indicated that
previously
the life
dence
he had
worked
As
possible. Shortly
when
before his
expectancy
I. Braun was 31.17
death
of Charlie
employed
paid
con
had been
years.
If Mrs. Braun had
rate
lived
per
$1,100 per year
earn
week. There
as
was evidence to
$25
tinued
as much
period,
capable
the effect that
during
earning
total
would
amount
$34,287.00.
again
per
from
hour.
If
earned
Under this
she
evi
$1
75‡
would,
opinion
$1,300 year
$10,000
much
the total
dence it is
as
as
course,
capacity
damages
be more.
not
earning
awarded
ex
however,
deceased,
the sole
cessive. Texas &
Orleans
not
New
R.
Co. v.
Hanson, Tex.Civ.App.,
in such cases.
damages
basis for
the deceased. In the based the jury Bishop, Tex.Civ.App., 203 Terminal Co. v. awarded verdict Charlotte Braun $20,- it (RNRE), was held pecuniary as amount of value of year a 64 old husband the loss her result sustained old year loss his 62 wife’s services death her mother. Under court’s housekeeper because of her death “pecuniary definition term value expectan her life excessive view of loss” contributions included as well as loss years care, more. nurture, ten In that case it education and cy of advice $2,- that approximately effect held Braun all which Charlotte rea per year was excessive loss her possibility during receive sonable mi services of housewife. nority From her mother her from mother appears that damages found above The evidence indicated that lived. Char been sustained Charlie I. years to have age lotte Braun seventeen *11 938 in dollars her mother’s measured and cents with 1956, date of
July high legal certainty. either or graduated from mathematical death. She For this She reason assessment of dam- May, 1956. school of latter ages time this kind case matter of a Antonio in San at living peculiarly province within employed the South- of by she where facts, tryers a Company jury’s since unless and Telephone Bell western clearly and award be so mother of should' her 1956. She saw June excessive as to of acci- an abuse amount morning of fatal brother discretion, com- we that it not be telephone feel should for the worked dent. She returned disturbed.” then months and pany for six January, she enrolled In home. $16,- In the above cited case awards of estab- Braun’s college. Based Mrs. year daughter 000 thirteen old a approximately capacity of earning lished $16,000 year to a twelve old son for the $4,- earned $1,100 have per year would she regularly death of their mother who of years four remaining during 400 'employed per about month $300 $25,000 The minority. Braun’s Charlotte spent large earnings who amount of her Braun exceeds awarded Charlotte daughter on her son not ex- were held during expected earnings Mrs. Braun of appellees’ cessive. agree We cannot with of Charlotte remaining years the four supports contention that the Landrum case $20,600. minority the sum Braun’s of judgment verdict the instant case. In the fifteen Landrum case mother Allen Braun was James per earned month. In this living about age at home years $300 and was case earned mother’s the mother month. the time of his about parents $100 his $25,000 In the case the 12 him Landrum children were awarded The also death. years accordingly. years age, having and 9 entered judgment was minority. earn In this remaining established case Braun’s upon Mrs. Based $6,600 years age, children earned she capacity average three Al and one-half years of about the remaining during children, years minority. award older than Landrum Braun’s len expected consequently many years earn less total exceeds the ed him remaining minority. The Landrum children were during his mother ings of $16,000 each, $32,- $18,400. awarded a total of minority by years of loss their during 000 for the mother by appellees that the ver- urged It eight years or nine mi- remaining of their in favor Charlotte dict and nority. earnings during Their mother’s supported Braun is Allen Braun and James year period the nine the youngest before their loss not because the evidence age child became of be reasonably could participate opportunity only of expected $32,400. to be total mother also earnings their but be- $25,000.00 Braun children were awarded help, guidance, loss of their cause each, $50,000.00, or a total the loss admonition, love affection control mother during their the remaining four It is ac- mother. their Christian years minority. their six Their stated Texas principle law as cepted earnings year during peri- mother’s the six Landrum, Tex.Civ.App., R. & N. O. Co. od, youngest before of them reached (RNRE), that: reasonably expected could majority be of not than pecuniary be total more “Neither the benefits the reasonably reasonably expected earnings might have ex- of the mother children mother, their of the Landrum children amounted to to receive from pected more nurture, of her the judgment, regard than them without to the the value nor portion can guidance awarded to them reason care, education and
939 S.W.2d Hicks, Oil Co. v. Tex. nurture, care, education and advice loss of their expected from have they which could earnings upon the total
mother. Based We agree appellant’s cannot Conten- dur- the Braun children of the mother of tion that in overruling erred ex- award of the portion minority their ing ceptions appellees’ to pleadings concerning nurture, of the loss of on account them gross negligence exemplary damages. and they care, advice which education and Appellees alleged negli- numerous of acts from received expected to have have could gence part on of truck driv- remaining four their mother during er, Woodward, alleged gross negligence minority weeks their six in that operating he was the truck at a $42,800. be total of about speed hour, per in excess of 45 miles at a speed the evi- the cir- After careful consideration under excessive cumstances, award proper keep dence we have concluded failed to appellees lookout, $25,000 minor keep prop- of the failed to each the truck under of the daughter’s loss er control A and that is excessive. he drove the truck on wrong mother nurture, of her side advice of the road. action on Such care part We a son. usually greater alleged than the loss Woodward to con- re- negligence gross verdict this negligence. are convinced that stitute In. spect substantially Lochausen, rational exceeds the case of Burt v. praisal damages Charlotte of the it is that a held an such ordinary negli- and exceeds combination the sum of of acts of Al- gence may, circumstances, appraisal under of the certain gross Judge amount to negligence. If each len Braun in Grif- the sum fin, a remit- appellees promptly speaking file majority of these will for the Su- titur, preme Court, ac- judgment will reformed stated: be otherwise, them cordingly, cause as to speed “This not a case of excessive will remanded for'a new trial. accident, having alone caused the being ordinary negli- thus a case of points appellant com In numerous gence, but from and cir- all the facts plains court in over action case, cumstances of this as shown ruling exceptions appellees’ pleadings its evidence, jury we think the had a concerning gross exemplary negligence and Lochausen, right defendant, to find the damages, of over evidence admitted its ob guilty gross negligence.” jection bearing upon gross negligence special Appellees’ pleadings concerning negli- and of issues submitted jury question. gence gross negligence part to the appellant exemplary damages. was, awarded no The er that Don Woodward ror, any, prior collision, if matters com at the time of to the plained incompetent, reckless, is therefore unless harmless careless driver of vehicles; particular of such a nature as to adverse motor shown to be Wood- was, ly appellant’s rights prejudice ward affect because recklessness and care- lessness, incompetent operate in its consideration other issues foot heavy long dangerously transport judg the basis of the truck the case are appellant; Appellant urges belonging to ment. matters Woodward had numerous complained prejudicial and harmful been involved in accidents of were and on passion prejudice occasions had traffic culminated in numerous violated laws Texas, thereby jury in State part verdict as shown demonstrat- incompetency; large damages. gen- his award of reputation incompetent, verdict, though large, even eral amount of the reckless driver; careless proof incompetency, and recklessness, without other show bias or does not general jury. carelessness and prejudice on the World reputation in known to regard mental in the factor is also described *13 appellant, ‘fraud,’ reports reasonable or the exercise of the terms ‘malice/ ‘oppression/ to diligence known the like. could have ‘recklessness/ neg- Regardless to pellant; appellant guilty expression used of the that entrusting it, intention ligence gross negligence purpose in describe the or of Don- the defendant transport into the care is determinative its truck Un- highways liability operation exemplary damages. for Woodward for gross show tending such less to there is of the State of evidence Texas necessary degree the proximate cause of with negligence was a acted the Ap- re- resulting damages. knowledge injury fatal collision and the sult, on pellant pleading exemplary excepted to above a verdict for the in degree con- cannot be sustained. ground allegations the the antici- re- which or the foresaw defendant appellees should clusions may, pated plaintiff injury quired specific allege facts sufficient doubtless, appel- vary in different apprise somewhat gross negligence show and to cases, from ranging, appears show proof as kind of relied lant of the pre- descriptive terms, filed between several gross negligence. Appellees thereafter purpose supplemental bring meditated about amendment. In this a trial injury on mind which alleged negligence state of they gross pleading ‘gross or permitting Wood- described ‘recklessness’ appellant in They negligence’.” to drive its truck. ward incompetent, reckless was an Woodward therewith and in connection
careless driver v. Ry. Co. In Pacific Missouri prior vio- guilty of three alleged that he 411, Shuford, 408, 165, 72 Tex. S.W. 10 speeding laws, for one lations the traffic gross negligence follows: as was defined of- 13, 1956, for January another on 1956, 10, May negligent on collision fense of negligence, ground “Gross to be aggravated offense for the another exemplary be that damages, for should December motor vehicle assault with a want of raise'- entire which would care 15, 1945. The last of these offenses the belief that omission act or' in a alleged to resulted fine $25.00 have complained con- result of a was the suspension month of Woodward’s and a six wel- right or scious to the indifference the trial urged in Appellant license. drivers persons af- person to be fare or court, here, pleadings and it does by it.” fected there- introduced in gross negli- raise issue of Allen, 134 Tex. In case of Rowan v. gence. 215, 1022, held that heed- 134 S.W.2d it rights disregard or reckless lessness 379, 383, as It is stated 13 Tex.Jur. conveys meaning as of others the same follows: “gross negligence”. term Hamil- also See Perry, Tex.Civ.App., ton v. a recov- S.W.2d plaintiff, “The order that Company 1142. In the case of may Morton Salt exemplary damages be sus- ery of Wells, 409, 123 Tex. show, merely v. 70 S.W.2d tained, required ought employer duty held that have who defendant could or had ordinary provide prevented the loss foreseen to exercise care to its em- plaintiff reasonably com- appliances with injury ployees of which safe perform intentionally but that acted which to plains, their duties- was wilfully, degree'of ‘gross gross negligence guilty or with that the evi- approximates years company a fixed showed negligence’ dence bring injury provided employees about the use of its purpose had plaintiff complains. dangerous machine with which to work. ploying King McGuff, instant him. allegations' Under Also see case, 403; Tex. appellant placed reckless, careless Ben- Howard v. nett, 712; incompetent driver, general had a who reputation large Damages In 25 such, charge of its § Am.Jur. C.J.S. 125, 735, potentially p. operation liability truck for dangerous considering the ap public exemplary damages master for highways. alleged that because of It was agent, pellant reck act of his knowledge of Woodward’s it is stated: lessness, incompetency, or carelessness and *14 “Further, a master is liable for the by diligence reasonable the of exercise acts of scope his servant the done in al was also could have thereof. It known employment of his where he em- has guilty numer leged that of Woodward ployed or a servant of known retained con negligence which ordinary ous acts of incompetence, recklessness, or bad gross allega If negligence. stituted these character.” evidence, ap by supported tions had been pellant for ex been liable have opinion appellees’ In our were pleadings emplary Elevators damages. Fort Worth present gross neg- sufficient to issue of the 128, 397. Russell, Co. v. 123 Tex. 70 S.W.2d ligence and in the trial court did not err In Texas the cited it is held that the case appellant’s objections overruling and ex- employer liability of an concerning rule the ceptions thereto. substantially exemplary damages was for Cyclo 10, in stated Fletcher’s as Volume We also hold the court Edition) pedia Corporations, (Revised of appellant’s objections not err in overruling follows: as exceptions appellees’ pleadings and proof prior by of three traffic violations the “Other that to make courts hold They Woodward. material is were on the exemplary any case to master in liable gross of negligence. sue of Two these vio fraud, malice, gross damages for the lations, by pleadings proof shown the oppression the negligence, or of serv- May January to have occurred in ant, proven it should be 1956, objected were when introduced constitute the acts the servant plea in third evidence. Woodward’s fraud, malice, gross negligence, or the guilty and for the offense of conviction by di- oppression committed were aggravated assault with a motor vehicle ori master, authority or or rection 15, 1945, ap objected December adopted has ratified master pellant when in introduced evidence on par- own, or he has such acts as his ground foreign in it was issue them, that the master has ticipated or the case and that it was too remote. The the selec- guilty negligence in prior introduction these offenses on the employment the servant tion part pur for were not Woodward malice, fraud, acts whose constitute credibility pose impeaching a wit oppression com- negligence, gross They were introduced and ad ness. of.” plained connection with the missible in issue of Houston, Hays N. R. part appellant, v. G. negligence case gross In held 272, theory careless- Co., upon Tex. it was that Woodward was a reck employees by incompetent a cor- less, selection careless driver ness exemplary knew, appellant dam- known, it liable or should poration made Sellers, Lum- case of Chronister v. ages. Also thereof. McIntire 207, Williams, S.W. ber Co. remote principal ness, prior a master where even in cases 402, it was held convic exemplary impeachment damages liable for is introduced pur because tion great agent agent if the to a within poses, was un- extent act discre opinion trial In principal court was reckless in tion of em- fit appellant’s objections that there was over overruling action No no harmless. evidence is . objections of evidence to the introduction based prior violations traffic an-. er unable swers to said issues. We are present reversible Woodward does not say that there an abuse discretion ror. except in the in the awarded 13, Special issues numbers appellees, awards minor Charlotte to the jury inquired of the charge and 15 of the Braun Under Allen Braun. incompetent whether Don Woodward was these circumstances the fact that truck which transport drive $25,- appellees each awarded minor appel July operating whether by $12,500 and which was excessive Pope, knew superintendent, Bert lant’s special its answer issue number oper incompetent that Woodward was attempted to award to Charlie appellant grossly truck, whether ate like- exemplary damages, which to Wood negligent entrusting truck *15 judgment wise does is not included in the I. Charlie operation, and whether ward for require whole judgment that the aas damages exemplary Braun was entitled be reversed. appellant. jury affirmative made from The an questions and in carefully, answers to all of these We record considered points presented 31 found re- special swer to issue number and and no all find ex as except awarded Braun be versible noted The Charlie I. should error herein. as $75,000. It except judgment emplary damages the is therefore affirmed the' sum portions by jury awarding minor that Woodward was also thereof found injuries' pellees $25,000 damages as for the loss’ damages a result each suffered no $25,000 of their mother. award to sustained in the collision. in sum of Charlotte Braun is excessive urges above Appellant strongly $12,500. $25,000 award to Allen the trial circumstances facts and in $12,500. in the sum of is excessive the admission together with case considered promptly appellees If file each will of these improper and inadmissible evidence remittitur, judgment will be re- gross pleadings bearing upon the issue of accordingly; otherwise, the cause formed actual for large awards negligence, as to will for them be remanded new $75,- attempted award damages and trial. conclusively damages exemplary 000.00 passion prejudice show Rehearing On Motion for er- constituting reversible jury carefully We have considered upon this bearing Appellant’s points ror. appellant’s for rehearing These motion find phase are overruled. of the case be, hereby is, and it in it should all appellant’s con- points upon based are except overruled, things as hereinafter stat in over- erred the court tention Appellant urges for in its motion re exceptions to ed. objections ruling its brief, in Appellees’ hearing, original it did pleadings evidence. $65,000 appellant’s awarded to subject pleadings were not con- I. Braun for the death of his wife exceptions, but objections and we excessive and that erred in not hold so trary sufficient raise negligence. ing. After re-examination of the exemplary damages gross record authorities, pri- we have reached the Woodward’s appellant’s for traffic violations was ad- conclusion that contention in convictions subject respect ob- this is well taken missible in the jections. The error submission to the award to Charlie I. Braun ex through appraisal special 15 bear- rational issues ceeds a of his damages by qu'estion gross negligence $20,000. death his wife ing for the Al- be, helpful $20,000, determin- though judgment in mittitur of precedents are him, aof inadequacy as to affirmed. On Octo- reformed and excessiveness sug- ber filed verdict, Charlie Braun there is no formula set gested ascer- damages can be remittitur of the exact amount opinion, original As noted tained. the trial Accordingly Ry. Terminal Co. the case Dallas conformity with said is reformed Bishop, and, reformed, affirmed. remittiturs as so held, effect, that (RNRE), approximately appeal award which amounted to will One-third of the costs of this year $2,000 per not excessive two- against appellees herein taxed year old house- loss of a 62 appellant. of the services against taxed thirds At least year husband. old wife may rehearing be filed Motions for one one difference that case days parties hereto fifteen within employ- the wife that in the instant case after, this date. and, consequently,-a ment outside home portion her time not di- substantial There was home.
rected to services in the necessity reduction a considerable evi- her services. The
value of domestic the total amount
dence indicates that employ- earnings expected
Mrs. Braun’s *16 period over
ment the home outside $34,-
years neighborhood would be judicial the fact notice of 287.00. We take AND LIGHT CENTRAL POWER present of that amount value COMPANY, Appellant, years money paid period over $34,000. have con- than We be much less Appellees. al., GRADDY et Emma Larsen Charlie award to cluded that the exceeds a rational Braun excessive and No. 13297. appraisal entitled he is Appeals of Texas. Civil Court of in the sum death of his wife receive n I. Braun Houston. appellee If Charlie remittitur, judgment promptly will file Dec. otherwise, accordingly; will be reformed 11, 1958. Filing Remittitur Dec. On for a him remanded the cause will .be new trial. Filing of Supplemental Opinion On
Remittitur 1, 1958, opin- August
On appellees Charlotte that if the suggested
ion Braun would each Allen and James $12,500,
promptly remittitur file appellees would each of said as to reformed, and, accordingly, reformed August 8, 1958, Charlie I.
affirmed. On
Braun, as next friend Charlotte Braun Braun, suggested Allen filed the 24, 1958, remittiturs. On October this court rehearing suggested
on motion for that if promptly I. Braun would file a re-