*1 158 243, 73; Meyer 256 provision in Tex. v. Great S.W.2d that a equally well settled is 408, parol Co., prevent Indemnity American 154 Tex. 279 policy is ineffectual 575; act- Ins. S.W.2d Standard Co. agent authorized Commercial an thereof waiver 627, authority. Villa, Tex.Civ.App., v. See 313 S.W.2d scope within Eastham, Ref. Casualty v. NRE. & Co. Fire American W/E 730, therein Cir., 729, cases F.2d 5 185 Appellant’s 2 Points and 3 are overruled. collated. It judgment follows that the of the Trial Court is affirmed. under
Finally it is our view us, situation before undisputed factual Company Gin appellee in the interest of ¼s), that such very being (only small exception an constitute interest should
small partner cannot view that a the Texas employee. In this connection be an likewise authority con respectable is
there compensation statutes WILKINSON, Appellant, strues workmen’s Robert Lee partner, working for effect v. employee, is and partnership as an LINDSEY, Minor, al., Appellees. Maxine et Ohio by the Act. See covered should be No. 6840. Commission, v. State Industrial Drilling Co. Appeals Court of Civil of Texas. 314, 25 139, A.L.R. 367. 207 P. 86 Old. Amarillo. 1 is Point overruled. Appellant’s Feb. 1959. Rehearing Denied March 1959. Appellant’s 2nd and 3rd con Request to Reconsider Denied March 1959. appellee’s the effect that tentions are injury limited compensation and should be arm; that the award left
to loss disability permanent against is total weight evidence. great carefully record reviewed the have
We that the evidence conclude us finding Trial Court’s sustain the sufficient disability. ap- permanent The total facts testified to two doctors
pellee and finding judgment sustain ample to The record is Trial Court. King’s Trial re Court. See
sustain 662, 244 Fur Estate, S.W.2d 660. Tex. liberally be construed Act should
ther, the Texas injured workman. favor Andrews, Tex. v. Ins. Ass’n
Employers 49; Maryland Casualty
502, 110 S.W.2d Hospital, 141 Memorial v. Hendrick Co. 969; Mut. American S.W.2d
Tex. Parker, 144 Tex. Liability v. Co. Ins. interpretation A liberal greatest benefits him award will injuries Har will sustain.
nature Co., 152 Trinity Ins. Universal v. grove *3 traveling
Ford car on the McKenzie Free- way, as a result of his failure directly brakes driving his car into path car, in fail- keep his car under control brought also because his automobile to a directly path the Eth- ridge Ford car in which Maxine passenger. *4 Appellant by denying generally answered appellees’ allegations pleading further and in special effect defenses James Ethridge, car, Carl the driver the Ford guilty was negligence by reason of his driving at an excessive rate under existing circumstances, by reason of appel- Vickers, Lubbock, for Vickers & his racing with on another the four- car lant. public highway question lane in at the time place question, and by reason of the ap- Cobb, Lubbock, Wagonseller for & Ethridge keep failure of to a look- pellees. by out and reason of Ethridge the failure of properly apply brakes, which brakes defective, PITTS, were alleged and that of such Chief all Justice. negligence acts of singly were either per- appeal for judgment This from a proximate combination the sole cause of $5,517.50 total sum of damages sonal in the alleged collision. further late injuries for a minor child received proceeded ques- into the intersection in in the on December afternoon following moving tion another automobile be- as a result of an intersection collision that was of him front and point occurring at a tween two automobiles that he safely would have cleared the in- Quirt McKenzie where Avenue intersects except previously tersection alleged for the Lubbock, city Freeway within the limits of negligence acts of of the driver the Ford Lindsey, Appellee, as the Texas. Irene car and the further negligence of the driver Lind- mother and next friend of Maxine question of the ca-r in and Ford the driver suit sey, age, a filed years minor 16 they racing of another car as their Wilkinson, against appellant, Robert Lee said automobiles on the McKenzie daughter, damages alleging for that her at Lindsey the time and that Maxine was passenger a auto- riding in Ford as a negligent riding with such a reckless being operated McKenzie east on the mobile Ethridge, driver as the driver of the Ford Ethridge, in- Freeway by Carl James car, failing and in warn him of the dan- a jured Ford collided with when the them, gers riding ahead of and in in a being operated north Chevrolet automobile people. crowded car with five other by appellant, Robert Lee on Avenue upon such Wilkinson, pleadings, Based intersection thereof case went at a injured daughter by reason which found in her effect said question that on the occasion in appellant at time and appellant negligence guilty negligence which question proximately as a result of his place in failure question by lookout, the collision in as a result caused keep proper reason keep proper lookout, stop his failure sign his side at failure to rea- requires failure son of his the law brakes of of the intersection Ethridge yield right-of-way rea- failed to avoid the collision car so as to appellant so and if he did fail was such yield the of his failure to son negligence failure and the in which Maxine sole cause of jury fur- In connection with passenger. collision. The Lindsey was complaint together, the same found that on the occasion ther briefed complains further being Ford car driven inquired trial court automobile racing with another 13, 14 and 15 submitted to the whether findings which exonerated made further Lindsey or not right- Ethridge and Maxine Carl James of-way Ethridge, proximately caused the driver of the Ford any negligence which car, appel- fail was such failure and further found the collision Lindsey, lees, caused and Maxine Irene $5,- question. damages in the total sum of suffered upon findings 517.50. Based elementary It is an of law rule accordingly from judgment court rendered in a case such as this the trial ap- perfected judgment appellant *5 governed by pleadings court must be the peal. submitting and the evidence in the issues to presented, appel- points In his of error jury. bar, appellees the the case at complains only of lant about certain sets pleaded appellant negligently failed to special concerning negligence having issues stop stop Quirt at the sign on Avenue be the to the about been submitted or question entering the fore intersection in the of the trial court to submit to refusal yield right-of-way the to the special requested of car, certain sets which in opinion our is a sufficient finally the failure of the about support pleading to the submission of jury concerning trial court to instruct the Special 13, 14 Issues Nos. and 15 inquiring traffic at an governing the law of the road the stop sign not controlled a intersection failure, the car and if such any or other used to control devices traffic. any, which question controlling In our the ques caused the collision. the Concerning here determined not under be is whether or tion of whether or not there was sufficient proper- the record of the case the trial court support evidence to submission ly in the issues, submitted case we shall now testimony examine the light of the of Section given by appellant himself. Ann.Civ.St., 6701d, Article Vernon’s
section as reads follows: Appellant testified in effect that at time of the said he was 73 vehicle shall like- of a “The driver years on the age; occasion in stop sign to a stop in obedience wise he, driving question Quirt north on an intersection herein at required stop Avenue, sign to the came on at one stop is erected sign a where point at the Avenue intersection although not thereto entrances more or point question, with of intersection highway and shall through part of a acquainted, well where he he was found cautiously, yielding to vehicles
proceed stopped ahead him another car for the with- which are obliged not waiting stop sign for the traffic on the approaching so Freeway clear and (appellant) he also an immedi- the constitute closely as to car; stopped behind other that the said proceed.” may hazard, then but ate Freeway highway is a divided with two east complains leading lanes accommodate first east requested traffic and two lanes leading bound submit west to refused 5B accommodate west bound inquiring 5A and traffic and the approximately that the car stop sign Quirt Avenue then on front of him had of the edge crossed the the south east had 70 or 80 feet from bound lanes and traffic both pavement Freeway; separated reached the on the center island which stop sign the car at the east bound waited traffic west bound other from the traffic, get leaving appellant the traffic to two for north lane for a “minute or traffic by”; appeared that the east that after bound Eth- traffic where the Freeway ridge on question east cleared car in going had collided with car; that he the intersection length other car started across could estimate the time it car some took question he the other the two followed cars in proceed- travel point it with cars to six feet behind both he first saw where them point rate of to the ing onto the at a where saw them the hour; per second time approximately place collision; miles or 20 near the stop sign looked result that before he left of an investigation made coming moving city received a west and saw two traffic negligent ticket for intersection, driving slope east down toward the the occasion running part appeared thereafter one in each lane Corpora- Lubbock they tion Freeway carrying Court traffic east paid where he a fine on the charge appeared made. about with running to be even In addition foregoing testimony given guessed they each other about appellant, and he he likewise gave quarter away; probably of a mile following testimony in the form Q. in the A.: south lane of traffic little behind one in north lane which *6 “Q. In other words, there were he learned later was the quite a few cars going by out there on collided; he car with which that he when that freeway, going directions, both moving coming first saw the said two cars you and and this other driver had to slope east down the on the west him sit back Quirt here on good for a Freeway, thought he both he the car and you until felt the traffic had front plenty in him had out, cleared you did Yes, not? A. safely Freeway time to cross the and such sir. pulled was the reason he into the inter- ; section that it was not unusual to see two “Q. All right. And, of course, that running by cars side side in the lanes two being a—a main artery there, a free- Freeway, on the said in going both way, plus and fact that there was a direction; that from the same time he first stop sign over here on Avenue, moving saw the said two cars headed east you knew that that was a main through stop sign before he left the until immedi- thoroughfare there, you did not? A. ately before the particu- collision he “never Yes, sir. larly them” he since watching noticed was “Q. And, of course, having traveled him, in front of but got he when on the freeway, and having observed up part Freeway into leading all these cars zooming there, you east, he heard the roar the moving cars speed knew that the on that freeway again and then looked and saw the said fast, general, was rather in you him”; moving “right cars were on two not? A. Yes, sir. saw said cars the second time only they were two or three lengths “Q. And that out traffic there him and were so close to him in the pretty freeway? heavy was on the A. got that he little excited * * * Yes, sir.” put on and his foot the accelerator and speeded up “Q. got you, little and so And course, close to were fa-' front of him car in miliar with fact turned his that the traffic was - steering so wheel as to miss hitting it; heavy that, through was a free-.. 1018; Lange pretty Drilling W.2d Co. traveling at a Cable Tool way, cars and Yes, Civ.App., v. Barnett Petroleum Corp., A. Tex. high rate out there? concerning point Then sir.” collision, appellant was testimony circum- testified that he There and were other acquainted by appel- stop sign inter given with the at the stances to corroborate question section in an abun- with was familiar lant. In our and there was Freeway question “a in main justify dance of evidence freeway.” thoroughfare” Special through Nos. and “a in Issues submitting any In event any IS about there were deficiencies inquiring appellees’ yield pleadings or in the evidence failure to presented facts applicable concerning them matters Ford car. The law question here, appellant presented appellant supplied required so right-of-way to traffic on deficiencies made own admissions on the his own moving testimony. long pleadings in his as there were an immediate Freeway such as to constitute error Appellant charges it was failed do hazard. That Special and 3 to to submit very fact conclusively evidenced jury inquiring if failed question at the intersection entered keep other vehicles lookout for close Ethridge car so time when the at the time approaching the said intersection an immediate hazard as to constitute place if such that a collision occurred between he did collision if cause Freeway. lane of the cars in north was no evidence fail, claiming that there support the submission of such appellant’s requested support sup was insufficient to or that the evidence urges SA and 5B he Issues Nos. any An examina port such issues event. 71(a) of Section refutes all of the evidence heard tion of 6701d, inter of Article to an no evidence appellant’s claim that there was governed is not section where traffic *7 support such the of evidence. to submission some which controls traffic such as device previously set Appellant’s testimony herein a stop sign existing the one we find in like that there was some evidence reveals out opinion the case at In our bar. there support the of issues he when heard pleadings the rec no or evidence shown in the two cars that he first saw testified support of the case at ord bar to the sub slope Freeway the coming down the of to requested Special of mission Issues Nos. immediately the intersection before ward properly 5B the tidal court 5A stop sign, par but he the “never he left jury. to refused to submit them the ticularly them” he was follow noticed sought has raise watching only to the other car Appellant appellees they having failed of him as about six feet that to ahead drove some Freeway edge Freeway McKenzie to the of the prove that 80 feet plead or 70 or to pave but it further onto highway,” pavement will be and then the “through was a Sec. when he heard the roar of ment of the said that noted quoted previously approaching again herein and then he are looked 6701d Article “although “right said cars were him” not a saw the to an applicable which the through highway.” It is like after part aof plead law that his car in with settled rule collided north lane well wise a by Freeway. His own testimony the evidence which reveals set forth need er only issue of lookout was prove case but his his raised and expects to that testimony was not constituting sought claims controverted but it facts said ultimate part 22; given by Sec. corroborated be established. to Tex.Jur. Tex.Civ.App., who testified that Daniel, S. Maxine he looked v. Andrews sign stop closely so' before he left toward them as to constitute immediate haz- an pull ard into the intersection. and he to and started could have then col- avoided insuffi- lision determining applying claim According his brakes. to pro- evidence, testimony own if evidence appellant cient there be looked neither to his support an affirma- left edge bative sufficient value reached the south viewing pavement issues, applied nor finding on the his brakes. It jury tive said opinion our light ain and circumstances under the record the the evidence finding properly Special court affirmative submitted most favorable such Is- contrary, sues Nos. jury 8 and 9 to the which disregarding all such to justified in answering to the issues each of them the submit said affirmative appellant and thus convicting jury. opinion was sufficient In our there a third act of ap- negligence given by particularly evidence and caused the collision. submission pellant support himself complained well about as of the said We find convicted Lynch v. jury’s thereto. answers appellant separate of three negli acts of Tex.Civ.App., 283 McLendon, gence and found each Syl. a definition gave The trial court cause of the collision. The acts said “proper our lookout” and term negligence so found were a fail own appellant, according ure testimony, movements failed to observe the to- the Ethridge car at intersection, of the approaching cars on failure to keep proper lookout immediate until sign time he left ly before the collision ap his failure into the intersection and moved ply his brakes to avoid the collision. Ei ordinary an failure act was not ther one these sets of findings furnishes ordinary prudent person in the exercise of a sufficient for recovery basis without the care under such circumstances. other two perchance if the other two for any reason were not valid but under rec complains be Appellant next ord us we find them all valid. Special Is submitted court the trial cause if inquiring charges 8 and error was com sues Nos. col to avoid the refusing his brakes mitted sub requested mit such was Is lision and 2B, 2A, he did 2D, sues 2C and proximately caused inquiring if appellees persons riding record reveals six so fail. The at *8 failed to appellant negligently the of collision that the an pleaded time caused over testimony previous such as and the crowded condition would apply brakes his constitute ap he did not negligence proximately that which ly out reveals herein set caused the himself testified Appellant collision. The evidence ply that reveals the his brakes. apply Ethridge but when brakes car two-seated that not Ford he did car approaching teen-age young people him close with three riding he saw the The officer who up a little. the front seat and three ly speeded teenagers in the collision, immediately the ex back seat. There appeared after was no- tending evidence report there that a to show such negligence and made constituted amined conditions certainly no skid he found marks no- evidence of that even indicating testified traveled immedi that such a appellant’s car had was cause where of the col any long found event. It has ately collision but lision held before been the presence Ethridge car. of four riding If men marks made in a skid Coupe left when he at the a looked to the time had did not con prohibited such edge south stitute reached the them recovery. ap Phoenix Refining would observed the pavement, have Co. v. Walker, Tex.Civ.App., Freeway approaching on the proaching cars 323. because of a complains to instruct the driver right-of- vehicle on to submit to the left shall trial court refused 4A, they way requested right driver on when Issues special Lindsey are both inquiring' approaching if Maxine an intersection 4B and 4C provided Ethridge 71(b) be- for in 6701d. Sec. of Art. failed to warn provisions in appellant’s entry Under the record before for the collision of us the 73(b) previously of Sec. them here- in front of of Art. 6701d quoted negli applicable failure, any, traf- because if constituted if such gov- fic at the colli gence caused the intersection in was Avenue, by stop sign erned a con- such sion. think the refusal We sequently record Sec. proper according to the was Art. at bar. in follow 6701d do not case First, court -us. trial opinion pleading our ing appellant’s sub Therefore is language Spe give correctly refused to said in- questions in mitted such substance requested appellant. an 34, 36 wherein structions cial -Nos. jury if Max asking inquiry was made stated, For appellant’s points the reasons Ethridge complain Lindsey ine judgment of error are all overruled and the might be perils, any, concerning the trial court affirmed. driving and the method of occasioned negli failure, any, if such constituted On Rehearing. Motion for colli gence proximately caused Lind Maxine The answered sion. PER CURIAM. complain Ethridge but sey fail to so negligence. Such that such failure was original Our judgment of af- ' heard. support in the evidence findings have firmance case hand- this were dated and in ef again testified Then Maxine February ed down on 1959. Rule who good driver fect that Procedure, Texas Rules of Civil allows ei- operating at rate carefully party days ther this in which to file in per approximately 50 hour miles rehearing. computa- Court motion A for in car into the drove his T.R.C.P., tion of that time under Rule Ethridge’s path tersection and into period 15-day case that the in this discloses upon seeing . car expired on March ' quickly applied his path Ethridge in his Appellant, Wilkinson, Robert Lee sent has the col all could avoid and did brakes Court, through the Clerk of this According testimony, there to her lision. requested mail United its fil- States been warn her have occasion for was no ing, rehearing a motion for in the said driving, and under Ethridge about his envelope cause. The in which the enclo- Lindsey did presented, Maxine the record postmark received sure was shows of: complain warn time not have “Lubbock, P.M., Tex. Mar. 2:30 1959” became existing dangers after through same received and the *9 occurred the collision apparent before mail United Clerk this States answer probably caused the 4, Obviously, on March 1959. Court failing com negligent in was not that she filing request motion rehearing for for Ethridge. The had also plain to the Clerk reached of this Court too late for testimony of Maxine to believe the right filing, Lindsey to the effect . who all careful driver good : collision. prevent the Since motion for could rehear filing tendered for 3, March 1959, charges deposited Finally was not error or the mail in envelope carrying for time refused to have committed day postmarked been “one or more required day same,” filing
the last for 5, T.R.C.P. Rule 1950, 1, amended March order effective deny appellant’s option
we have no but to rehearing filed
right motion to have his for author
or have no considered us. We filing
ity enlarge for extend the time
such motion under circumstances Thomas, Tex.Civ. cited.
rules Thomas v. 552;
App., Gal v. S.W.2d Dennis 582; Tex.Civ.App.,
breth, 228 S.W.2d Reese, Tex.Civ.App.,
Phillips v. 166; Ry. Car Davis v. Brotherhood Tex.Civ.App., America, 272 S.W.2d
men of
938. al., et
ATLANTIC REFINING COMPANY Appellants,
v. SCHIFF, Appellee.
BRIGHT &
No. 13462. Appeals of Texas.
Court Civil Antonio.
San
Feb. 1959.
Rehearing Denied March