Johnston Sales Co. v. Lizana

513 S.W.2d 879, 1974 Tex. App. LEXIS 2532
Court of Appeals of Texas·Decided July 25, 1974·No. No. 5346·Published·Cited by 3 cases

Opinion

OPINION

JAMES, Justice.

In this case, upon Defendant-Appellee’s Motion, the trial court disregarded six of the jury’s answers to special issues and entered a judgment that Plaintiff-Appellant Johnston Sales Company take nothing against Defendant-Appellee Henry Lizana. We reverse the trial court’s judgment and render judgment in favor of Plaintiff-Appellant in accordance with the jury’s verdict.

This action arose as a result of a tractor-trailer collision with a bridge on or about November 28, 1970 on Farm to Mar-et Road 78 in the outskirts of Cíbolo, Texas, in Guadalupe County. Cíbolo is located between San Antonio and Seguin, Texas. Plaintiff-Appellant Johnston Sales Company, a corporation, alleged that it was the owner of the tractor-trailer rig in question; and sued Defendant-Appellee Henry Lizana doing business as Johnny’s Garage for the loss in market value of the trailer, cost of repairs to the tractor and value of the loss of use of the tractor while undergoing repairs. It was Plaintiff-Appellant’s position that on the occasion in question Defendant-Appellee Lizana committed certain acts of negligence in connection with the operation and parking of his wrecker-truck on the paved portion of the highway on which the subject bridge was located, which conduct proximately caused Plaintiff-Appellant’s tractor-trailer rig to collide with the bridge. Defendant-Appellee in his pleadings charged Arturo Garza, the driver of Plaintiff-Appellant’s rig, with certain acts of contributory negligence.

Trial was had to a jury, which made findings in response to the following respectively-numbered special issues which are pertinent to this decision, to wit:

(1.) That on the occasion in question Defendant Lizana parked his wrecker on the paved part of the highway;

(2.) That such parking was negligence, and

(3.) A proximate cause of the collision;

(6.) That on the occasion in question Defendant Lizana parked his wrecker vehicle at a location so as to obstruct traffic approaching San Antonio from Seguin on the subject highway;

(7.) That such parking was negligence, and

(8.) A proximate cause of the collision;

(8A.) That at the time of the accident the trailer in question was the property of Plaintiff Johnston Sales Company;

(9.) That immediately before the accident the trailer had a market value of $10,000.00;

(10.) That immediately after the accident the trailer had a market value of $1500.00;

(10A.) That at the time of the accident the tractor was the property of Plaintiff Johnston Sales Company;

(11.) The cost of repairs for the tractor was $800.00;

(12.) The value of the loss of use of the tractor while undergoing repairs was $500.00.

Special issues 13 through 20 dealt with the problem of whether or not Plaintiff’s driver, Arturo Garza, was guilty of con-[881]*881tributary negligence. The jury failed to find Garza guilty of any contributory negligence.

Thereafter, Defendant-Appellee filed a Motion requesting the trial court to disregard the jury’s answers to Special Issues 8A and 10A (finding Plaintiff-Appellant to be the owner of the tractor and trailer), 9 and 10 (the reduction in the market value of the trailer), 11 (cost of repairs of the tractor), and 12 (value of the loss of use of the tractor). Said motion alleged that there was no evidence to support the jury’s findings to said special issues. Upon hearing, the trial court granted such motion; and entered judgment that Plaintiff-Appellant Johnston Sales Company take nothing against Defendant-Appellee Lizana, from which Plaintiff-Appellant appeals. We reverse the trial court’s judgment and render judgment in favor of Appellant against Appellee in accordance with the jury verdict.

To sustain the action of the trial court in granting the motion to disregard the six special issues in question, it must be determined that there is no evidence on which the jury could have made the findings in answer to such special issues. Rule 301, Texas Rules of Civil Procedure; Burt v. Lochausen (Tex.Sup.Ct.1952) 151 Tex. 289, 249 S.W.2d 194; Leyva v. Pacheco (Tex.Sup.Ct.1962) 163 Tex. 638, 358 S.W.2d 547. In acting upon such motion all testimony must be considered in a light most favorable to the party against whom the motion is sought (here, the Plaintiff-Appellant), and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Burt v. Lochausen and Leyva v. Pacheco, both cited above.

By examining Plaintiff-Appellant’s evidence in its most favorable light it is our opinion that the trial court erred in disregarding the six special issues in question on the ground of no evidence to support such findings. Indeed, we not only find the existence of some evidence to support such findings, but also that there is substantial and factually sufficient evidence to support such findings.

Appellant’s eight points of error complain of the trial court’s sustaining of Defendant-Appellee’s motion to disregard the six jury findings and entering the judgment in favor of Defendant, asserting that there was not only evidence, but factually sufficient evidence to support the jury’s findings that the tractor and trailer were the property of Plaintiff, of the market value of the trailer before and after the accident, of the cost of repairs to the tractor, and the value of the loss of use of the tractor. We sustain these contentions.

Since Defendant-Appellee has by cross-points raised the question as to the factual insufficiency of the evidence supporting the jury’s findings not only to the six special issues above-mentioned, but also as to other jury findings, as more particularly hereinafter pointed out, we will review the evidence of all the special issues in question, both from legal sufficiency and factual sufficiency standpoints.

Let us first review the evidence bearing upon the jury’s answers to Special Issues 8A and 10A, wherein the jury found the tractor and trailer to be the property of Plaintiff Johnston Sales Company at the time of the accident.

Arthur L. Johnston testified that he was the president of Johnston Sales Company, Plaintiff-Appellant herein. Johnston Sales Company was a corporation owned 51% by Johnston Elevator and Storage Company and 49% by Arthur L. Johnston, his wife, and his daughter. Johnston Elevator and Storage Company was a family corporation wholly owned by Arthur L. Johnston, his wife and daughter. In other words, Johnston Elevator and Storage Company was the “parent corporation” and had control over Johnston Sales Company, and both were family corporations. Likewise Arthur L. Johnston, together with his father and his two sisters, owned still another [882]*882corporation, the A. L. Johnston Grain Company. All three corporations headquartered in Seguin, Texas. Johnston Sales Company was in the business of buying and selling grain, purchasing grain from the farmers, storing it in the Johnston Elevator and Storage Company grain elevators, and then taking it out of these elevators and hauling and selling the grain in different parts of the country. Johnston Sales Company owned several tractor-trailer rigs which were used to haul the grain, and its operations ranged from the Rio Grande Valley in the South as far North as Minnesota and as far east as Florida.

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Johnston Sales Co. v. Lizana, 513 S.W.2d 879, 1974 Tex. App. LEXIS 2532 (Tex. Ct. App. 1974).

513 S.W.2d 879 (Johnston Sales Co. v. Lizana) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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