Ragsdale v. McLaughlin

285 S.W.2d 467

• Court: Court of Appeals of Texas
• Decided: September 22, 1955
• Docket: 6822
• Status: Published

Opinions

DAVIS, Justice.

Appellee, E. V. McLaughlin, sued appellant, Verna Mae Ragsdale, for damages growing out of an automobile collision at the intersection of Church and Jefferson streets in the city of Sulphur Springs. Appellant filed an answer and cross action in which she sued E. V. McLaughlin and his son, Paul McLaughlin, who was driving the McLaughlin car at the time of the collision. In appellee’s second amended original petition he made numerous allegations of negligence and then made some 15 alternative allegations of negligence which he alleged either singly, or either two or more collectively, or all acts of negligence combined, was or were the proximate cause of the collision.

At the time of the collision appellant was traveling north on Church street and Paul McLaughlin was driving appellee’s car west on Jefferson street. Appellee specifically alleged negligence on appellant’s part as a matter of law and relied upon. Subsections 33(1), 35(1), and 73(b) of Article 6701d, Vernon’s Ann.Civ.St., and Sec. E of Article 801, of the Penal Code.

The suit was originally filed in the Justice Court of Precinct No. 1 of Hopkins County; the amount of damages alleged being $141.26. Trial in Justice Court was to a jury which found that the collision was an unavoidable accident, and judgment was that plaintiff take, nothing. The case was appealed to the County Court by appellee and after the appeal was perfected, appellee filed a motion for summary judgment based upon the pleadings on file in the case, the affidavits of himself, his son, Paul McLaughlin, Delbert White, Jr., and Mary K. Goldsmith, as well as the deposition of the appellant, Verna Mae Ragsdale. The motion for summary judgment was contested by the affidavit and deposition of appellant. The motion for summary judgment was granted and judgment was rendered against appellant for the sum of $141.26.

We quote the trial court’s findings in the judgment:

“The court having considered said motion the deposition, affidavits, and pleadings on file in said cause and having heard the arguments of counsel thereon, is of the opinion that the law is for the plaintiff and cross defendant E. V. McLaughlin and Paul McLaughlin.”

Appellant brings forward three points of error wherein she complains of the action of the trial court in granting appel-lee’s motion for summary judgment on the whole case because: (1) The material fact issues of negligence and proximate causé were and are in issue in the case; (2) appellant’s plea of ' unavoidable accident was a fact issue; and (3) appellant’s alternative plea that the weather and the streets were the sole proximate cause of the accident was a fact issue; and .that each of the fact issues was duly controverted by the pleadings, affidavits and deposition of appellant.

Appellee contends in his counter points and brief that there was no genuine issue of fact to be decided because of the alleged violation of law in his petition, the substance of the contention being that when a person approaches a highway or street intersection; the' person approaching the intersection must yield the right of way to any other person approaching from their right. Appellee cited no authority in support of this contention. The most recent authorities on the question are clearly against such contention. Sec. 71(a) of Article 6701d provides:

“The driver of a vehicle approach^ ing an .intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.”

And, see Warren Petroleum Corp. v. Pyeatt, Tex.Civ.App., 275 S.W.2d 216; Buchanan v. Lang, Tex.Civ.App., 247 S.W. 2d 445, w/r n.r.e.; Pressler v. Moody, Tex. Civ.App., 233 S.W.2d 165; Ferris v.,Stableford, Tex.Civ.App., 248 S.W.2d 186; Pure Oil Co. v. Crabb, Tex.Civ.App., 151 S.W. 2d 962; American Grocery Co., Inc., v. Abraham, Tex.Civ.App., 94 S.W.2d 1231; Checker Cab Co. v. Wagner, Tex.Civ.App., 199 S.W.2d 791; Brooks v. Enriquez, Tex. Civ.App., 172 S.W.2d 794.

Appellee cites numerous authorities on the theory that appellant was guilty of negligence as a matter . of .law and - that under the circumstances no evidence would be admissible to establish the .defenses alleged by appellant or to establish the many acts of negligence alleged by appellant against appellee’s son as set out in her pleadings and her deposition.

Rule 166-A of our Texas Rules of Civil Procedure grants to our trial courts only limited authority to grant motions for a summary judgment, especially on the whole case where the pleadings clearly join the issues. -Our summary judgment rule was taken from the Federal Rules of Civil procedure, 28.U.S.C.A., and in Ohio Citizens Trust Co. v. Airway Electrical Appli-anee Corp., D.C., 56 F.Supp. 1010, 1012, the court in quoting from Electricál Fittings Corp. v. Thomas & Betts Co., D.C. N.J.1943, 3 F.R.D..256, quoted as follows:

• “ T. The .federal rule pertaining tq summary judgments vests-in .court lim* ited authority to enter a summary judgment only" if it Clearly appears that there is no genuine issue as to any material fact, and that moving party is entitled to judgment as a matter of law, and does not authorize court to summarily try factual issues on affidavits and depositions of parties. Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. following section 723c.

“ ‘2. To authorize the granting of a summary judgment, the complete absence of any gériuine issue must be apparent, and all doubts thereon must be resolyed • against moving, party. Federal Rules of Ciyil Procedure, rule 56, 28 U.S.C.A.. foil owing section 723c.

“ ‘3. Where record on defendants’ motion for summary judgment,'in action for violation’ of Clayton and Sherman Acts, was devoid'of evidence on principal issue raised by allegation that patent involved was unlawfully used to restrain trade, to lessen competition, and to create a monopoly and disclose a disputed issue of fact as to whether plaintiff suffered injury, motion was detlied. Clayton Act, §§ 3, 4, 15 U.S.C.A.' §§ .14, 15; Sherman ■ Anti-Trust Act, §§ 1, 2, .15 U.S.C.A. . §§ 1, 2; Federal Rules of Civil Procedure, rule 56, 28 U.-S.C.A. following section 723c.’”

Therefore, it seems that the Federal courts look a little more to the entire record than have our state courts, but be that as it may, the appellee based his motion for summary judgment upon the pleadings, affidavits and ‘ deposition. The affidavits offered by appellee do nothing more than reiterate some of the facts alleged by him. -The pleadings’,- affidavit and deposition of the appellant directly contradict appellee’s affidavits and pleadings, and we must view' the record in the light • most 'favorable'to the. appellant and assume-every fact; apparent in'the case in her -favor. Gulbenkian v. Penn, 151 Tex. 4-12, 252 S.W.2d 929; Loud v. Sears, Roebuck & Co., Tex.Civ.App., 262 S.W.2d 548, no writ history.

- Fact-issues- were clearly-raised and evidence' in support of appellant’s pleadings will be admissible upon the trial of this casé. Appellant’s points are sustained.

For the errors hereinabove pointed out, the -judgment of the trial court is- reversed and the cause-is remanded. >- ' -