Opinion
No. 3434.
October 15, 1936. Rehearing Denied October 29, 1936.
Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.
Suit by Oscar Hunter against R. H. Crim and another. From a judgment for plaintiff and an order refusing a new trial, named defendant appeals.
Affirmed.
Hunter brought this suit against R. H. Crim to recover personal injury and property damages caused by a collision between a truck owned by defendant and a wagon in which Hunter and wife were traveling.
Defendant pleaded general denial and unavoidable accident.
The driver of the truck, an employee of defendant, was found guilty of negligence in various respects proximately causing the accident. The issue of unavoidable accident was found in plaintiff's favor. The property damages were assessed at $1,000. The personal injury damages to Hunter were assessed at $6,000, and to Mrs. Hunter at $8,000, for all of which amounts judgment was rendered.
The wagon was traveling westward upon a paved highway in Van Zandt county upon the right-hand side of the road. The right wheels of the wagon were upon the shoulder of the highway. The truck was traveling in the same direction. According to the testimony of H. L. Foster, the driver of the truck, he turned to the left to pass the wagon when he observed in his rear view mirror a car rapidly approaching from the rear. He turned back to the right to permit that car to pass, and when it passed he attempted to follow it and then discovered a car approaching rapidly from the opposite direction, which forced him to again turn to the right, causing his truck to collide with the wagon.
In the preliminary statement contained in appellant's brief, it is stated: "The defendant's theory was that the accident happened by reason of the fact that the truck driver had attempted to cut out and go around the wagon without having seen a rapidly approaching car from the opposite direction; that when he saw this he attempted to cut back to the right, and being too close to the wagon, ran into it and the collision was thus caused."
The collision occurred about noon. The driver of the truck left Dallas about 7 or 8 o'clock the night before. He drove to Longview. He reached there at 1 or 2 a. m. and unloaded. He then drove to Henderson, reaching there at 4 or 5 a. m. He then came to Tyler and left there about 8 a. m. He was returning to Dallas when the accident occurred. He had not slept since leaving Dallas.
The suit was originally filed against Crim, the owner of the truck, and Foster, the driver. The suit was returnable to the April term, 1935. Crim filed motion to quash the citation and subject to such motion filed plea of privilege. Foster also filed plea of privilege. Both pleas were filed April 8th. Controverting affidavits were filed April 18th. The motion to quash was sustained; the case continued to the ensuing September term and Crim given until appearance day of that term to file such pleadings as he desired. September 12th defendants moved to strike the controverting affidavits upon the ground same had not been filed until nine days after the appearance day (April 9th) of the April term. At the September term the suit as to Foster was dismissed, and upon September 12th Crim's plea of privilege was overruled. Later in the term the case was tried upon its merits and disposed of as heretofore stated.
W. H. Barnes, of Terrell, A. A. Dawson, of Canton, and Thompson, Knight, Baker Harris, of Dallas, for appellant.
Wynne Wynne, of Wills Point, for appellee.
It is asserted that because the controverting affidavits were not filed within five days after the appearance day of the April term, the court was without power to dismiss as to Foster and could do nothing except to enter an order changing the venue.
This contention is without merit for the mere failure to file the controverting affidavit within the five days' period did not imperatively operate to require transfer of the venue. Until a plea of privilege is acted upon, the court retains jurisdiction and for good cause shown may permit the filing of a controverting affidavit after the five days' period and consider the plea upon its merits. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978; Miller v. Burnet M. Co. (Tex. Civ. App.) 65 S.W.2d 505; Brown C. C. Co. v. Jenson (Tex. Civ. App.) 32 S.W.2d 227; Page v. Schlortt (Tex. Civ. App.) 71 S.W.2d 886.
If it be conceded the evidence raised the issue of contributory negligence, the court nevertheless did not err in refusing to submit any issue in that respect because it was not pleaded. With certain exceptions which have no present application, contributory negligence is not available as a defense unless pleaded. Texas N. O. Ry. Co. v. Rooks (Tex.Com.App.) 293 S.W. 554; Dunn v. Texas Coca-Cola B. Co. (Tex. Civ. App.) 84 S.W.2d 545.
Nor does the evidence raise any issue of a new and independent cause which destroyed the causal connection between the negligence of the driver of the truck and the injury complained of. The appellant insists the issue of a new and independent cause is presented by the evidence showing that when the driver attempted the second time to pass the wagon he was forced to turn to the right by the appearance of a car approaching from the opposite direction. A driver upon a public highway who undertakes to pass upon the left another vehicle proceeding in the same direction must ordinarily anticipate that his passage may be obstructed by vehicles moving in the opposite direction upon the lefthand side of the road, as happened here.
Appellant points out no evidence which would relieve the driver of the truck of foreseeing and anticipating that his passage might be obstructed by a car approaching from the opposite direction. Wherefore, the evidence raises no issue of a new and independent cause which would break the proximate causal connection between Foster's negligence and the collision. The court for this reason did not err in refusing to submit an issue or charge in that respect. Leap v. Braziel (Tex. Civ. App.) 93 S.W.2d 1213; Texas-Louisiana P. Co. v. Bihl (Tex. Civ. App.) 43 S.W.2d 294, Id. (Tex.Com.App.) 66 S.W.2d 672; Butler v. Herring (Tex. Civ. App.) 34 S.W.2d 307.
For discussion of the rules of law relating to a new and independent cause, see 30 Tex.Jur., Negligence, §§ 56 and 57.
The criticism of the issues relating to damages is without merit. Nor is there any merit in the assignments complaining of rulings upon evidence and refusal to permit counsel to propound certain questions to the jurors upon voir dire examination.
The same is true with respect to the complaint made of argument of counsel. Some of the argument would have been regarded as objectionable and reversible in nature except for the fact that the bills of exception show it was provoked by previous argument made by defendant's counsel.
Misconduct by the jury is charged as follows:
1. That it first agreed upon the amount of damages and then answered the other issues so as to impose liability for the same.
2. The jury discussed and took into consideration the fact that defendant probably carried insurance which would pay the judgment or a part thereof and the fact that plaintiff's attorneys would receive a part of the judgment.
The evidence does not support the charge that the issues were intentionally answered so as to impose liability for the damages previously agreed upon.
It does show there was some discussion in the jury room as to the fact that defendant, being the operator of a line of trucks, probably was required by law to carry insurance which, to some extent, protected him. There was also some discussion to the effect the plaintiff's attorneys probably had a contingent fee and would receive a part of the recovery.
The evidence, however, shows the foreman of the jury promptly admonished the jurors their discussion as to insurance and attorney's fees was improper and had nothing to do with the case.
They all testified the reference to insurance and attorney's fees did not influence their verdict.
Appellant in his brief has referred to no evidence which would excuse the truck driver for attempting to pass plaintiff's wagon without knowing or having reasonable ground for believing the left side of the road was clear so the truck could pass safely. That the truck driver was negligent in attempting to pass hardly admits of doubt.
The damages awarded are not excessive. It is not so contended. The evidence would have warranted damages for the personal injuries inflicted, particularly as to the wife, heavier than the sums awarded.
Under all of these circumstances, the trial court did not abuse the discretion vested in it in overruling the motion for new trial. Bradley v. Texas P. Ry. Co. (Tex.Com.App.) 1 S.W.2d 861; Commercial Credit Co. v. Groseclose (Tex. Civ. App.) 66 S.W.2d 709; Ford Motor Co. v. Whitt (Tex. Civ. App.) 81 S.W.2d 1032; Dallas Ry. T. Co. v. Ector (Tex. Civ. App.) 91 S.W.2d 954.
Affirmed.