*1 203' COACHES, al. et AIRLINE MOTOR al. GUIDRY et v.

No. 4634. Appeals of Texas. Civil

Court of

Beaumont. 2, 1950.

Nov.

Rehearing Jan. Denied Rehearing Motion

Second 14, 1951.

March *2 Marie as defendants. Plaintiff’s

injuries alleged were arisen from have between the collision riding, P. Bor- was owned C. dages Marie and driven by Lucee operated Bordages, and a bus owned and Coaches, Airline Dixie Mo- Motor Inc. alleged Corporation tor to have Coach was purchased the business Airline Motor Coaches, Inc., after the date the accident. upon part alleged negligence Plaintiff the Airline Coaches’ driver Motor Bordages, who also was been the auto- mobile in the furtherance of business her husband and herself. brought Mr. and cross Coaches, Inc., against Airline Motor

action Corporation for and Dixie Motor Coach and, likewise, Airline Motor their Coaches, Inc., Dixie Motor 'and Coach Cor- poration against action brought an over indemnity for Mr. and Mrs. contribution. guilty found the Airline driver

The negligence, proximately causing the col- lision, Bordages guilty and also found proximately causing the negligence; court, however, entered collision. motion in accordance with the of Mr. for non obstante veredicto’ jury- Bordages, disregarding the and Mrs. part Mrs. proximately causing the colli- sion, $6,000.- plaintiff recovery awarding Coaches, Inc., Motor against Airline Corporation, and Dixie Coach Motor Bordages $4,238.25 awarding and Mrs. Mr. Inc., Coaches, against Motor Airline Corporation. Under Motor Coach & Dixie Price, Holland, Kelton Strasburger,. nothing Beaumont, judgment plaintiff recovered Lord, Dallas, Miller, Everett likewise, and, from andMr. Mrs. appellant. Coaches, Inc., and Dixie Airline Motor Choate, and Leonard E. & Barnes Barnes Corporation were allowed Motor Coach Guidry. Beaumont, all of Jesse recovery against Bordages. Mr. and Mrs. Beaumont, Tucker, & Orgain, Bell Thus, against there was a total Lucy Marie appellees C. P. Coaches, Inc., appellants, Motor Airline Bordages. Corporation and Dixie Motor Coach plus $10,238.25, interest and costs. COE, Chief overruled, motion for new trial After Justice. perfected appeal appellants duly their damage brought is a suit This court. plaintiff, Airline Motor Coaches, Dixie Motor Coach Cor- This cause submitted to the poration, Lucie C. manner, special in the usual issues special found that answer to issues the was not appellant guilty the follow- result of an unavoidable accident. acts of ing each *3 Thereafter, mo- filed Jessie collision; proximate cause of the the tion judgment for the P. on verdict and C. keep operator the failed to the bus Bordages duly timely and wife filed proper driven lookout automobile their motion judgment on such verdict driving by Bordages; he Mrs. and in the their non alternative motion speed; rate of said bus at excessive obstante veredicto. trial over- court negligence on that it to drive said bus Bordages ruled the motion of P.C. and wife highway; that he the left-hand side the for judgment granted on verdict the to an audible of his failed sound their motion non obstante pass automobile driven to the veredicto, the disregarding in re- negligent in Bordages; Mrs. he sponse Special Issues Nos. pass the automobile attempting driven Appellee charge. court’s the Jessie place in Bordages at time and Mrs. the Guidry’s motion for on the ver- question; failing negligent it in that was granted dict was as against Airline Motor stripe along the see the dash center Coaches, Inc., and Dixie Motor Coach Cor- highway. In answer the issues rela- poration, but C. was denied negligence acts on tive to Bordages Bordages. Lucie Marie appellee Mrs. of the the Appellees Bordages’ motion for to find that Mrs. refused non obstante fully veredicto out sets keep proper failed to lookout the bus why reason the trial court disre- question; at on occasion in the time and gard findings by Special they to find that turned sudden- refused she 27 and and sets out their ly in the bus time and front of at on support contention in this court in of the they found that Mrs. question; occasion in disregarding trial court’s action in these Bordages failed to or suf- findings. For paragraphs that reason 1 to intention to turn ficient of her at 7, inclusive, of said motion will be set out question; that and on the occasion in time haec verba: ordinary she failed exercise care in 1. ordinary giving adequate and response special “That in is- turn that such intention to failure court, particu- sues submitted cause, proximate was a or contributed larly through Issues Nos. 3 question. cause, the collision in charge, operator the court’s found that the They refused find that Airline Motor Coaches bus on the to see if other vehicle to look question keep in proper occasion failed to by changing would be affected course lookout, drove said bus at an excessive (cid:127)her at on automobile the time and the occa- speed, negligent rate of question; they sion in refused to find that said the left hand side high- bus on of the sig- failed to way, negli- which was negligence, and nal of her intention turn at the time and gently failed to sound an be- audible question; in occasion the man- attempting pass fore automobile Bordages operated ner in which Mrs. negli- driven Mrs. and was at time occasion gent attempting pass question was not the sole at time and was cause of question. toAs negligent failing stripes see the dash alleged negligence along highway the center of the and the refused to find that jury further found that each and all of ordinary Guidry failed to exercise said acts proximately caus- warning collision, care in not of the response ed presence prior highway of the bus on the court’s assessed question, plaintiffs the collision in and further in favor of cross 4. ($3500.00) Thirty-five sum of Hundred Dollars. plain- defendants and cross party “Third spe- court that the tiffs further show to the Spe- response to finding cific cross and' defendants party “Third statutory ob- cial Issue No. 31 relative to unto tiffs further shows ligation controlling over response Special Issues Nos. jury given in and indefinite jury found court’s 26, 27 response Issues Nos. give a suffi- Bordages failed to that Mrs. *4 28, signal, a and with reference to sufficient turn, to and her intention signal cient indefi- reason such and this additional ordinary care to exercise that she failed purely findings to the nite with reference sig- sufficient giving not signal should relative matter of a sufficient such turn, that to and nal her intention con- and that disregarded, and be set aside ordinary proximate- care failure to exercise spe- should trolling effect be col- to cause said ly or contributed caused duty statutory submitting findings cific further found in re- jury lision. Said plainly visible giving to a with reference Special 31 that Mrs. sponse to only That a matter law the signal. give plainly a to Bordages did not fail signal plainly required visible awas to turn at her intention signal of visible liberty at to hold that was not question. the occasion in the time and on sufficient. was not plainly a visible 3. 5. plain- cross party defendants and “Third plain- and cross party “Third defendants the court that to tiffs further show to the court tiffs further show response Special jury in findings 28, Special Issue No. jury’s answer 26, 28, set should be Nos. 27 and Issues disregarded aside and be set should disregarded in under the aside give the failure the evidence under applicable Bor- law Mrs. provisions prox- not been a signal, if could a required give plainly a dages only question, collision in cause of the imate turn and signal of her visible response Special found since said obligation give under no that she Bordages did not fail No. 31 that Mrs. Issue That any signal. character of other signal, and the a visible give plainly having entered field Legislature response Special having further found (K) Article provided by Section having 3, 4 5 that driver of Issues Nos. operator the Penal Code 801 of proper keep lookout failed to a bus sig- give plainly visible should a vehicle Mrs. driven the automobile duty nal, full such constituted negligence and a failure was on the occasion Mrs. owed proximate cause collision. response that in question and did jury found that she No. 31 Issue 6. As statutory signal. give the fail to duty on the being “There no obligation law, a matter give plainly than a Bordages to other Mrs. signal, character give other findings signal, or audible 26, Nos. jury’s answers 26, response to Issues Nos. be set aside and disre- should set aside should be and disre- and 28 obligation being no garded, there placed upon in that such issues garded, about, inquired signal as duty some place attempting required by law, than different obligation than Legislature different having entered statute, wholly unsup- prescribed what character prescribed field jury having appli- given, or the law by the ported she did not fail case. to this cable remodeling engaged doing response was findings in statutory signal, the a colored Bordages. He was work for the at- 26, 27 Special Issues Nos. arrangements carpenter and under pro- duty than impose tempt to a different they were to he had with law a matter of by statute, and as vided each morn- carry place him to his of work additional other the failure accident, morning ing. On constitute signal could not n pro- Bordages was Mar. said collision. cause of highway with ceeding on said northward dogs riding in the two Jessie back seat defendants and cross party “Third pet Mrs.' unto tiffs further show The location goat riding in the front seat. Special Issues response to jury findings in working where be set aside 28, should 27 and side on the west or left-hand a conflict to avoid in order disregarded traveling. in the direction she was highway response finding made in auto- driving the who was *5 No. 31.” Issue place her mobile, testified that complain of points make left- Appellants’ first two place where she undertook disregarding court in the trial was in a curve of of off the road the action hand turn response to findings of With reference road. 28, and 26, course intention to turn the signal her of appellees, C. P. as follows: automobile she testified allowing of her appel against exactly you just what “Q. to recover Tell indemnity and appellants Well, window down denying I rolled the lants A. did? Appellants con signal. them. had looked my from I give turning contribution findings in their jury, that anything coming tend back there wasn’t that Special Issues it and I rolled the then was cold window (cid:127) adequate Bordages up my before made Mrs. back I turn.” The signal vague of her intention testimony or sufficient to turn is rather and uncertain as just the collision in that point before when or how far from failure was a failure to exercise Bordages her where Mrs. auto- turned proximately it ordinary care, and that signal mobile to the left she was when the contributed to the cause of the given. caused or her intention to turn was It that question; in view of “about estimated was favor of good speed distance.” The feet, n have been .appellee should just before her automobile she undertook severally against jointly and C. P. entered by Guidry the turn was estimated to make wife as well as Bordages and his twenty-five per miles be about hour Coaches, Airline Motor appellants, down to make . until she slowed the turn. Corporation, Motor Coach Dixie signal given shows that the evidence The not have been al extending was her Mrs. favor of Mr. and Mrs. lowed position in a horizontal arm and hand appellants. .against the bus, The driver which was her left. car, with testified in collision This accident occurred while any signal not see kind that he did driving was her automobile Bordages. long For how her given by northerly City from the direction ain position is not shown. arm remained referred as the Beaumont (cid:127) speed from the Evidently, judging extension of 11th Street. Road or Voth automobile, it must have been withdrawn accident some two place The (cid:127) distance some little from the vehicle into (cid:127) city outside limits miles three or to make .the where she undertook Beaumont. had sufficient reason she her husband were turn place she arid out to her arm into withdrawing after purpose time remodeled having raise the window of the automobile appellee, who carrying Jessie ute, Code, (K), Texas Penal began to make the Art. 801 before she “(K) person reads follows: traveled how her automobile far turn. Just upon any public vehicle arm from withdrawn her after she had specula- highway before or position turning, stopping or less more horizontal tion, changing some the course of shall However, been for such vehicle it must have before, space see first that there is sufficient appreciable and, as stated distance safety, arm such movement to be made in her length time she extended operation speculation. We movement or of other purely to are-of left may justified reasonably the vehicles be affected opinion that turning, had stopping changing or believing course, give plainly her in- shall or audible her extended arm vehicle, person operating, driving change tention to course his intentions visible, but was of such vehicle it was course”; turn, stop change her she extend so did not either say adequate time to that the length of was unauthorized arm in of her intention the insufficient warning a reasonable adequate. pg. again C.J., vehicle Sec. the course of her turn Vehicles, lays believed, C.J.S., have they might and would Motor down § requirements “Statutory the time believing, that at rule as follows: justified in been respect operation given was not of motor common-law abrogate notice of vehicles do sufficient or *6 operators or thereof change course owners intention to the duties the might place. the particular respect persons property It on with vehicle at this prescribe under- of conduct highways, the where she but rules be added of, to, her right-hand left in in excess common- turn addition took to from ordinary- private entrance requirements, and a lack the law highway side of by the circumstance property. It care is not to her was neither street excused requirements, statutory expressed intersection, from that judging nor a all road also,. See, complied with.” photographs in evidence was have been hardly notice- Staten, Tex.Civ.App., 60 S.W. expressly attention called to v. able unless McMath Tex.Civ.App., 290; Antwine, passing, present In same. we note the Morrison v. Walker, 820; Bailey Tex. governing statute of 51 v. S.W.2d change an intention to the course of auto- Civ.App., S.W.2d 864. (which was in mobile not effect what we have said' It follows from accident) provides date of this in Art. findings, that there is no conflict between 6701d, (b), Ann. Subsec. Vernon’s § Issue 31 “A Civ.St., as follows: and that we required right when turn or left shall that the trial court was not to- authorized continuously not during than less disregard the findings to- feet traveled (100) last one hundred Special Issues Nos. 28 and. turning.” It before

the vehicle is common appellees, enter C. P. public knowledge securing in and refuse to enter licenses since this took drivers’ statute appellee Guidry judgment in favor part of in the latter 1947 has been effect severally against the jointly and several- required to learn the rules of educated and appellants. appel We therefore sustain portion road, including this Points lants’ Legis- the first time This is statute. gone into to when and has details as Appellants’ complains- lature Point No. 3 period of time such should of the form of in for what agree ap- submission We cannot restrict be visible. Bordages’ damages pa'in for future mental pellee contention since to- pain in complied prob- with the mental as criminal stat- such reasonable by plaintiff explo- in ability be suffered a direct and result of the would question”, in Issue No. 40 to this sion the future. which did not include complaint probability”, made reads as follows: the test of “reasonable error. It will making also be noted that in evidence, preponderance of the “From a holding Supreme' this Court cited the paid money, any, if now in what sum of Sanders, case of Wichita Transit Co. v. compen- reasonably fairly cash would supra. However, here plaintiff, sate the presented was in not the case of Fisher v. capacity, any, earning if diminished Transport Co., supra. Coastal There the past, money earn in if there labor and ‘“may” word and here word used future, any past, in has been “will” used, which to our minds is any future, in the if there will be a more restricted if physical pain, any, past, in the if right pain tiff’s to recover for future any past, there been in the has suffering than be the term “may would future, any future, in the if there will be probability reasonable The word suffer.” pain, past, if in the mental auxiliary “will” has been defined past, and in if has been commonly verb having mandatory sense future, there will be if shall must. It is a word of cer- caused, future, directly and proximately tainty “may” while the word one of you found, injuries, if if so speculation uncertainty. See Black’s any, sustained, any, by Dictionary. Law We do to be not want question? phrase understood condemning “You mat- will consider elements or “may in reasonable probability” when used plaintiff’s ters pain connection with future and suf- pleading prepon- and not established fering. We think phrase clearly pre- derance of the evidence. sents law and is more favorable to the provides than will “You answer the foregoing issue only that a will consider such future *7 amount, stating any, if in dollars pain plaintiff and as the suffering “will” cents, you may as and prepon- find from a easily We suffer. can how see derance of the evidence, but if right complain would have a of a you Guidry find that sustained Jessie which recovery his for limited future damages, you then will answer ‘None’”. pain and suffering jury to such as the support point In appellants of this rely might believe from preponderance many cases, including the case the evidence he “will” To suffer. Wichita Sanders, Transit Co. v. 214 S.W.2d our minds much this is more restrictive the Court of Appeals Civil plaintiff’s on the right to recover as Amarillo, which without sup- doubt required is jury to find in fact not a and ports appellants’ Many contention. other probability reasonable that he will suffer. pro cases are cited and con charges where We realize that a close this is and have used “may” the word which has been consideration, we have it our serious by many courts specu- condemned as being even though Supreme and Court has lative, and allowing jury to deal with cited the case of Wichita Transit Co. v possibilities probabilities instead of Sanders, supra, supporting apparently as awarding damages pain for future and the conclusion them reached suffering. In the case of Fisher v. Coastal Transport case, Company Fisher v. Coastal Transport Co., Tex.Sup., 230 S.W.2d supra, yet we cannot say will not and recently which was Supreme before the Court, charge given this case or the court held that in a suit for personal injuries, given in the Transit Co. special submission Wichita v. San- to the issues ders case is error unless until the Su- amount dam- and ages compensate that would injured preme directly plain- Court it as condemns physical tiff for speculative mental suffering permits and and “that to wander may he undergo have to possibilities. as at into the realm future will It weight and thus’ a comment on the appellants’ 3 is Point No. follows emphasis undue gave and awarding the judgment overruled. The tiffs’, original defendants’ as well wife, Lucie appellees, C. P. and theory of the case.” Bordages, damages reversed Marie they take here entered Appellees’ Alternative No. Counter-Point awarding nothing, 3 is follows: “The court committed Mo- damages against Airline overruling appellees’ prejudice error to Coaches, Inc., tor Dixie Motor Coach objections to refusing to sustain its Corporation be reformed as to award so ground Issue No. 26 vague indefinite such issue was too damages against his Airline Motor Coach- specific inquiry as to where and made no Corpora- es, and Dixie Motor Coach or at time or wife, Lucie tion and P. C. signal.” give any Appellees’ con- failed to severally. It jointly Marie pleadings the effect that the tentions appellants will that the be further ordered justify did not the submission pay one-half in this costs incurred appel- Issue No. the reason that 26 for appeal appellees that the C. P. Bor- acts lants had certain wife, dages Lucie Marie which were found all of pay one-half. appellees favor of the

and that the court should not submit- inquired ted which On Motion for Rehearing. whether Mrs. Appellees C. wife have or sufficient vigorous filed a motion rehearing turn, her intention to before the collision they challenge the soundness of our question, contending that allega- original disposition of this case and have purely tion allegation neg- called our attention to certain errors in our ligence specifying without in what manner opinion. original These will errors guilty negligence; corrected the corrected will be that such issue not have been sub- opinion. original substituted our Not- objection over their mitted vigorous withstanding the motion for re- out, which will that, be hereinafter set capable hearing manner in though even the same was submitted presented, it has been we adhere our against such original rulings. appellees These also com- appellees, the trial court was authorized plain of the failure of spe- this court to *8 disregard theory to finding such on the pass upon cifically and discuss certain al- general contrary that it was a finding points urged ternative in their brief. specific findings, general and that such appellees complain These specifically of negligence' yield to a specifically pass our failure to discuss and contrary finding on acts of upon their counter-points alternative negligence. points In discussing these we Appellees 3 and 4. Point No. 1 con- it to set necessary feel out certain Spe- that the of the tends portions pleadings parties. cial Issues Nos. 27 and 28 are in ir- negligence alleged The acts of against the reconcilable conflict their answer to appellees Bordages wife, by ap- and Special Issue No. We feel that this pellants paragraph No. S of sufficiently orig- was discussed our appellants’ cross-action, answer and and inal and for the reason therein follows: are as Appellees’ 'stated the same overruled. place “At time said alternative and accident Point Error is as fol- No. belonging automobile ap- “The court the said to the de- lows : committed error to Bordages, being pellees’ prejudice op- fendant C. P. overruling re- and (cid:127) objection wife, his Lucie fusing sustain erated and driven Marie its herein, Bordages; also defendant ground on the that such issue Issue No. 26 repetition the business of C. furtherance was a other vehicle Bordages, would affected wife, Marie Lucie automobile, changing of her herein, course of and herein so set forth defendants further, regulation defendants, violated said in not C. P. as to render the legally plainly audible Bordages, Lucie Marie turn, her intention and such violation Lucie responsible for the statute proximately said caused said colli- operating and Bordages, Marie who injuries sion to the occasion, on such driving said automobile plaintiff, set Bor- hereinafter Lucie Marie defendant, and the said forth.” occasion, there then dages, on such omissions, acts, each guilty wrongs and To appellees this Mr. cross-action acts, negligence, and all amount only general filed and Mrs. jointly wrongs, omissions and exception denial. to the No made severally, were cause allegation failing give her an as to particularly more collision adequate in sufficient or of her set follows: forth as exception tention to turn. made lookout; the submission of this issue to the keep proper (a) failing In vague follows: issue “Said is too suddenly in front of turning (b) In inquire indefinite in it does not bus; place where or at what time her left arm failing (c) In to hold give signals.” As failed her signal of give so as straight out objection we construe it does not in this turn; intention to complaint clude or it was cover the submitting negligence. issue of adequate or failing an (d) In objection we only As construe this it com turn; sufficient plained of issue be the submission acts, foregoing and all of That each inquire it cause did not as to where or at part of the wrongs and omissions time failed then who was Bordages, Lucie Marie signal. Therefore, we are belonging proposition with the confronted husband, the fur- C. P. to her appellants plead that Mrs. defendants, business of the therance of the or sufficient wife, Lucie Marie C. P. turn, intention to which there was severally, proximate- Bordages, jointly objection ground it wa injuries and ly caused said s general, too followed a submission plaintiff hereinafter set damages of of such without issue forth. objection that it was a submission of connection, And further negligence generally. As we understand show that under the law of road would appellees, the contention of the we are re defendant, Texas, the State Lucie quested either, affirm reverse re turning, stopping, before Marie pleadings mand this cause when neither the *9 automobile, changing the course of objected nor the were to for the required to see that there was first Appellees urged. reasons that now contend that, space movement sufficient be such general finding it must this safety plainly in and to visible or made way specific findings, in vehicle which audible other support they of this contention cite the by turning, stopping affected might be City of Beaumont, case Harbin v. Tex. course, plaintiff changing would Civ.App., 146 we con S.W.2d As defendant, Lucie Marie Bor- holding show in the Pearson strue case of obey dages, Supreme failed to heed or Doherty, by Court, terms our v. road, being provisions of said law of 64, 453, the rule an Tex. S.W.2d Code, 801, “K”, Penal case, Subdivision Article the Harbin which followed nounced Corp., Texas, Tex.Civ.App., Statutes of in that v. Bernard Criminal Cuniff by court, not look to see whether or also is overruled. she did not S.W.2d objection of under No. does raise an ad case the substance In the Cuniff objection ditional if the which is covered effect that holding was by argument their of error or the specific in conflict jury finding makes point. specific However, due under after finding that the with the consideration, opinion we are under As we must be effect. finding Special objec Issue No. which case, this 40 to opinion the Pearson stand lodged subject tion held in our is not ob disapproved. We ruling is jection objection The finding being: of the made. “Said opinion that original jury not do not confine the to such Special 31 was instructions Issue No. jury pain, any, may Special they Issue mental if find from finding to as their conflict with preponderance gave plain full ef of the evidence the that reason No. 26 and for tiff, prob findings to will reasonable jury’s fect Jessie ability there was sustain in the event the future as a direct and and 28. In any, result if authorized we not be a conflict would party No. of the Special Issue third defendants.” disregard findings of Issue jury No. 40 submitted con effect to the other as 26 and negligence. damages fines the jury resulting from acts on more injuries, Guidry by Pearson in the The rule as announced sustained is in the question. collision in issues supra, Other case, rule is: “The degree or submitted to the findings, inquiry either in made priority question whether the two collision in was the importance, and where negligent part are such result of ap- fact acts on the respect a material pellees. can neither true, having then found that the both cannot collision in 64, 183 S.W.2d was the result of the 455.] stand.” Tex. [143 negligent appellees, act of these it neces Error Appellees’ Alternative Point sarily any injuries follows that received as follows: No. was the result of prox appellees’ prejudice “The court erred to imately negligence caused these overruling refusing to sustain its appellees ap as well as the objection Issue No. 40 of pellant Airline Motor we Coaches. This charge, particularly court’s to that feel is sufficient limitation pain, included future mental awarding that such issue to con- ground Mr. and Mrs. pain they fine the mental the rule announced the case of preponderance might find from a Paving Company Pyle, Standard v. Tex. in reasonable would Civ.App., 131 200 and the case of S.W.2d probability sustain future.” Reichart, Anderson v. Tex.Civ.App., 116 S.W.2d and other cases cited these We felt that we in our said appellees apply. does not dispose original was sufficient to point. However, here, We feel that on motion for re what we have of this said appellees together original with what we hearing Mr. Mrs. Bor- objection dages urged Special opinion, points that their sufficiently discusses raised; appellees all Bordages’ 40 covered matters were alter- points Upon native us. overruled’ discussed examination of error are c, rehearing their motion for record we find Sub-Section is denied.