Landess v. Thomas

343 S.W.2d 504, 1960 Tex. App. LEXIS 1916

• Court: Court of Appeals of Texas
• Decided: November 15, 1960
• Docket: No. 7228
• Status: Published

Opinions

DAVIS, Justice.

Appellee-plaintiff Bob Thomas sued appellants-defendants, Jack F. Landess, Charles C. Pearson, Richard H. Mills, and Nu-Grape Bottling Company and M. W. Hulme for damages for personal injuries as the result of a collision between a truck driven by Bob Thomas and a pickup that was driven by M. W. Hulme, a driver for Nu-Grape Bottling Company. The collision occurred inside a city where the maximum speed limit is 30 miles per hour. A. A. Hodges filed a cross action against M. W. Hulme and Nu-Grape Bottling Company, and impleaded Landess, Pearson and Mills for damages to his truck that was operated by Bob Thomas. The negligence charged against Mills, an employee of Landess and Pearson, caused the pickup truck driven by Hulme to collide with the truck driven by Thomas.

The case was tried before a jury, and the jury verdict was in favor of Thomas and Hodges. The jury convicted both Mills and Hulme of negligence, but the trial court sustained a motion of Hulme and Nu-Grape Bottling Company for a judgment of full indemnity against Landess, Pearson and Mills. From the judgment, Landess, Pearson and Mills have perfected their appeal and bring forward 13 points of error.

By their points 1 through 12, the appellants complain of the action of the trial court in refusing to grant their motion for directed verdict, in refusing to submit certain special issues, in failing and refusing, to give their requested definition of “independent contractor”, in overruling their objections to special issues Nos. 11-A and 12-A for the reason that there was no evidence to support said issues, and overruling their objection to special issue 14-A for the reason that such issue is a comment on the weight of the evidence and is a general charge; in overruling their objections to the instruction and definition of “independent contractor”, in refusing to grant appellants’ motion for judgment non ob-stante veredicto, and entering judgment for the appellees for the reason that the jury’s answers to special issues 1S-A and 1S-D constitute a direct and irreconcilable conflict with the findings of the jury in response to Special Issues Nos. 20-A and 21-A, and entering a judgment for the ap-pellees and against defendants Mills, Lan-dess and Pearson, and in overruling appellants’ motion for new trial for the reason assigned therein.

Suffice it to say that we have carefully examined the record in this case, and find these points to be without merit, and they are respectfully overruled.

The appellants complain of the action of the trial court under point 13 in granting a judgment against appellants for full indemnity in favor .of Hulme and Nu-Grape Bottling Company against Landess, Pearson and Mills for the reason that the acts of negligence as found by the jury had been committed, and were not operative in that they had been completed when the collision occurred between Thomas and Hulme. The trial court found that the acts of negligence committed by Hulme were only passive. The jury found that at the time of the collision, Hulme failed to keep a proper lookout, that such failure was negligence, and from a preponderance of the evidence, was a proximate cause of the collision in question. The jury further found that Hulme drove on the left-hand side of the road, but they also found that he did not drive the pickup at a greater rate of speed than a person of ordinary prudence and care would have done under the same or similar circumstances. There is no challenge to the findings of the jury as being contrary to the abundance of the evidence on the question of fact that Hulme did not operate the truck at an excessive rate of speed, or that he did what an ordinarily prudent person would have done under the same or similar circumstances. As we view the record, Hulme was operating the pickup at an excessive rate of speed, regardless of what the jury found in its verdict. Under the testimony of a witness called by Hulme, he was operating the truck at a minimum speed of 35 to 45 miles per hour in a 30-mile speed zone. He operated his truck a distance of approximately 300 yards (900 feet) at a time when he could have stopped. Yet, the jury exonerated him of any active negligence. Hulme says he was blowing his horn while he was driving down the side of the highway, and in another phase of his testimony he said that he was jerked loose from the steering wheel of his pickup and was lying flat on the floor while he was driving along the side of the highway.

There has been much written on active and passive negligence, but under the record in this case we do not find any way that we can reverse the holding of the trial court that the man was guilty of only passive negligence. In Tex.Juris. 30-B 204, Sec. 32, we find the following:

“Effect of Relative Ability to Prevent Injury. — Where injury or damage has been caused by the ‘concurrent negligence’ of two or more persons, either or both of the actors may be held liable for the whole thereof, although one may have contributed in a greater degree to the injury. Further inquiry as to proximate cause is not pertinent. As between the injured innocent party and the joint wrongdoers, there will be no inquiry as to the comparative negligence of the two, and no apportionment of damages based on such comparison. In such case the negligence of both of the parties is the proximate cause of the injury to the injured party.”

Then, immediately following the above quotation in 30-B Tex.Juris., page 204, Sec. 33, we find the following:

“Responsibility as between Defendants — Although two or more persons may be held liable by the victim notwithstanding that their opportunities to foresee and prevent the calamity may have differed one from another, yet, as between themselves, one may claim indemnity from the other or others. As between active and passive tort-feasors, the law permits recovery by the passive wrongdoer against the active wrongdoer. Where the dispute is as to the responsibility for the prejudicial occurrence, the decision proceeds in accordance with the showing as to the relative ability of one and another to have foreseen and averted the harm. The negligence of the active perpetrator of the wrong would be the proximate cause of the injury to the party whose negligence did no more than produce the condition.” (Emphasis added.)

Under these holdings and the authorities therein cited, there is nothing we can do except overrule the appellants’ thirteenth point of error.

The judgment of the trial court is affirmed.