Cody v. Mahone

497 S.W.2d 382, 1973 Tex. App. LEXIS 2121
CourtCourt of Appeals of Texas
DecidedJune 20, 1973
Docket15152
StatusPublished
Cited by13 cases

This text of 497 S.W.2d 382 (Cody v. Mahone) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cody v. Mahone, 497 S.W.2d 382, 1973 Tex. App. LEXIS 2121 (Tex. Ct. App. 1973).

Opinions

KLINGEMAN, Justice.

This is a personal injury damage suit arising out of a collision involving a station wagon automobile driven by appellant, Matilda R. Cody, and a pickup truck driven by appellee, Charles E. Mahone, Jr., on San Pedro Avenue in San Antonio, Texas. Trial was to a jury who found that appellant did not fail to keep a proper lookout, and was not negligent in failing to keep her vehicle completely within the right half of the roadway.1 The jury also found that the right rear door of appellant’s vehicle was not locked when appellant left the barber shop immediately prior to the occurrence in question; that the failure to make sure such door was locked was negligence; [384]*384and that this was a proximate cause of the occurrence in question. No negligence was found against appellee.

The jury found damages in the amount of $10,000 for pain and mental anguish in the past, $5,000 for future pain and mental anguish, $7,000 for loss of earning capacity in the future, and $3,000 for medical and hospital care in the past. Nothing was awarded by the jury for loss of earnings in the past, and nothing for physical impairment.

Both sides made motions for judgment based upon the verdict. Judgment was for appellee in the sum of $25,000.

Appellant asserts five points of error, some of which contain several subsections. At the outset we are met with appellee’s contention that the objections and exceptions to the charge of the court and all points which are based thereon are not properly preserved for consideration as error; and accordingly, appellee asserts that appellant’s first point, Subsections 1, 2, 3, 4, 5 and 6, and appellant’s fourth point, Subsections 1 and 2, should not be considered by this Court.

The transcript contains a lengthy document entitled “DEFENDANT’S SPECIAL EXCEPTIONS TO THE COURT’S CHARGE.” It is signed by counsel for appellant and contains the file mark of the clerk thereon. However, the instrument does not contain the ruling by the trial court on such exceptions, and such document does not have the official signature of the judge endorsed thereon as required by Rule 272, Texas Rules of Civil Procedure.

Objections to the charge of the court are not properly preserved for review where the court does not endorse thereon its ruling on the objections to the charge by the judge signing the same officially. Long v. Smith, 466 S.W.2d 32, 37-38 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.); Sherwin-Williams Paint Co. v. Card, 449 S.W.2d 317 (Tex. Civ.App. — San Antonio 1970, no writ); Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.) ; Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Tex.Civ.App. — Corpus Christi 1965, writ ref’d n. r. e.); Rule 272, supra.

Under the record we cannot consider such objections and exceptions to the charge of the trial court, nor any points of error which are based thereon. However, we do not agree with appellee’s contention that we cannot consider appellant’s no-evidence points of error,2 nor her points of error that as a matter of law appellant owed no duty to appellee to lock the door in question, and that as a matter of law the failure to lock the door could not be a proximate cause of the collision and resulting injuries.

We will first consider appellant’s contention that as a matter of law appellant had no duty to appellee to lock the door in question, and that as a matter of law the failure to lock the door could not be a proximate cause of the collision in question. These points will be discussed together, since they are basically interwound with the element of foreseeability.

On July 9, 1969, appellant, accompanied by her three children, Debbie, age fifteen; Michael, age fourteen; and Cathy, age two and one-half, drove her 1968 Pontiac Bonneville station wagon to a barber shop. Prior to arrival at the barber shop, the children were in the second seat of the station wagon, and all their seat belts were fastened. At the barber shop, Debbie and Michael got out of the car through the right-hand rear door. Appellant testified that when they got out she asked them to lock the door; that they pushed the lock button in, and to the best of her knowledge, they also pressed the button on the outside of the door, but she did not actuai[385]*385ly see this; that the older children slammed the door; and that when she left the barber shop, the door was closed. As they left the barber shop, Cathy remained in the same seat, but her seat belt was not refastened. After appellant left the barber shop, she turned north on San Pedro and was driving in the driving lane next to the center stripe; that as she was driving, she heard a sudden rush of air in the car; that she turned her head and Cathy was standing by the right rear door, and the door was beginning to open; that she reached through the arm rest opening with her arm and grabbed hold of Cathy’s dress; and that while doing so, she veered across the center stripe.

At such time, appellee was driving south in the lane next to the center stripe in a pickup. Appellant testified that she saw the pickup immediately prior to the collision and tried to avoid it, but that the collision occurred, and that it was a sudden type of thing. The officer who investigated the accident testified that the point of impact was approximately four feet on the side of San Pedro Avenue designated for south-bound traffic; and that the left front section of each car was involved in the collision. He further testified that he found approximately forty-five feet of skid marks behind appellant’s car and approximately forty feet of skidmarks behind ap-pellee’s car. Appellee testified that appellant’s car was in his lane when he first noticed her car; that such car was coming right at him; and that he had no time to do anything but slam on his brakes. There is testimony that if the door latch of this type of automobile is pushed down, the door cannot be opened by pulling up on the door handle; but that in order to open such door once it is locked, you have to pull up both the door latch lever and the door handle. Appellant testified that Cathy had never played with door latches or door handles before to her knowledge, and she had never unlocked a door while the car was in motion before. It is to be remembered that recovery in this case was predicated solely upon the jury’s finding that the right rear door of the vehicle driven by appellant was not locked upon leaving the barber shop immediately prior to the incident in question; that the failure to make sure that such right rear door was locked was negligence; and that this was a proximate cause of the occurrence in question. No other acts of negligence were found against appellant.

It is often stated that negligence is the failure to observe a legal duty; and when no duty exists, no legal liability can arise on account of negligence. Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913) ; J. E. Stevens Funeral Home v. Busby, 336 S.W.2d 812 (Tex. Civ.App. — Eastland 1960, no writ); A. C. Burton Co. v.

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Cody v. Mahone
497 S.W.2d 382 (Court of Appeals of Texas, 1973)

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Bluebook (online)
497 S.W.2d 382, 1973 Tex. App. LEXIS 2121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cody-v-mahone-texapp-1973.