Page v. Lockley , 176 S.W.2d 991 ( 1943 )

FUNDERBURK, Justice.

G. C. Lockley sued Oscar Page (Black and White Cab Company) to recover damages for personal injuries resulting from a collision between a taxicab, owned by defendant and driven by an employee, and an automobile used by plaintiff. The collision occurred at night on Pine Street in the City of Abilene. The automobile in charge of plaintiff, and in which he was seated, was standing still when struck by defendant’s taxicab approaching from the rear. Plaintiff alleged negligence of the taxi-driver in the following respects:

“1. Said taxi-driver failed to keep a proper look-out.

“2. Said taxi-driver was driving at an excessive rate of speed.

“3. Said taxi-driver was operating said cab at night in the City of Abilene and State of Texas, an incorporated city, in excess of twenty-five miles an hour.”

Defendant pleaded a number of grounds of defense consisting of contributory negligence, and in addition thereto pleaded that bright lights of a third party blinding defendant’s taxi-driver was the sole cause of the accident, and, alternative to all defenses of contributory negligence, alleged that the collision was due to unavoidable accident.

In a trial by jury only one of the three alleged grounds of recovery was submitted, namely, negligence consisting of a failure of the taxi-driver to keep a proper look-out. The issues involved in such ground of recovery, as well as all defensive issues submitted, were found in favor of plaintiff. From the judgment, in the sum of $1,674, based to the extent of $1,500 upon said verdict and to the extent of $174 upon a finding made by the judge, the defendant has appealed.

In our opinion, the verdict is not subject to challenge on the ground that it is a “quotient” verdict. The evidence justified the conclusion that there was no agreement of the jurors that the result of dividing by twelve the sum of the amount of damages favored by each juror should constitute the verdict. While such an agreement would not, we think, necessarily be an express agreement, but might be implied, even so, there was no express agreement, and there was evidence sufficient to exclude any implication of such agreement. That a preagreement to the effect that the result of the division should constitute the verdict, is essential to show misconduct in such respect, seems to be well settled. Allcorn v. Fort Worth & R. G. Ry. Co., Tex.Civ.App., 122 S.W.2d 341; State v. Littlefield, Tex.Civ.App., 147 S.W.2d 270; Karotkin Furniture Co. v. Decker, Tex.Civ.App., 32 S.W.2d 703, and authorities cited.

The amount of damages awarded by the verdict of the jury was $1,500. The judgment awarded recovery of $1,674. The difference of $174 represented that part of the total damages resulting from incurred reasonable and necessary doctors’ and hospital bills. The $174 item was included in the judgment on the theory that the facts that the same, in such amount, was incurred and the necessity and reasonableness thereof, were established conclusively by the evidence.

One point made is to the effect that the court erred in including said $174 in the amount of recovery awarded, “as Plaintiff waived same in not requesting it to be submitted to the jury.” Plaintiff counters with the contention that the action of the' court was authorized by Rule 279 (Texas Rules of Civil Procedure.) Provisions of said rule pertinent, or possibly so, are as follows:

“Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party. * * *

“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, * * * such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.”

Under the circumstances here presented, the above-quoted provisions of the Rule suggest a number of interesting questions not dealt with in the briefs. What is a “ground of recovery?” More specifically, is the claim for damages (alleged at $250) consisting of expenses incurred for medical services and hospitalization, a ground of recovery? If so, is it an independent ground of recovery? It affirmatively appears from a recitation in the judgment that the $174 was included because the judge considered that the right thereto had been established conclusively by the evidence. The evidence as to the reasonableness of amount and the necessity of incurring the expenses was opinion evidence. All such evidence was either that of interested witnesses or consisted of opinions, or both. Opinion evidence, when admissible, only raises an issue of fact, but does not conclusively establish the fact. Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332; Crow v. Thompson, Tex.Civ.App., 131 S.W.2d 1064; Guinn v. Coates, Tex.Civ.App., 67 S.W.2d 621; Hodges v. Hodges, Tex.Civ.App., 111 S.W.2d 779; City of Big Spring v. Fletcher, Tex.Civ.App., 156 S.W.2d 316; Bridwell v. Bernard, Tex.Civ.App., 159 S.W.2d 981; Metropolitan Life Ins. Co. v. Funderburk, Tex.Civ.App., 81 S.W.2d 132; Octane Oil Ref. Co. v. Blankenship Antilley Implement Co., Tex.Civ.App., 117 S.W.2d 885; Gulf, C. & S. F. Ry. Co. v. Davis, Tex.Civ.App., 225 S.W. 773.

But notwithstanding the court, in our opinion, was in error in concluding that the evidence conclusively established the $174 damages, additional to the damages found by the jury, it does not follow necessarily that defendant has the right to complain of the court’s action in that- regard. Whether under provision of said Rule 279 the right to the $174 has been waived by plaintiff, or the right to complain of the court’s action in awarding recovery thereof has been waived by defendant, depends upon whether or not the claim for this item of' damages is an independent ground of recovery. We shall assume, without deciding, that such claim constitutes a ground of recovery within the meaning of said Rule. If it constitutes a ground of recovery, then we have no doubt it is an independent ground. An independent ground of recovery undoubtedly means a ground independent of other grounds, if any. As an independent ground of recovery no issüe was submitted or requested to be submitted, nor was objection made to any failure or refusal to submit any issue “necessary to sustain such ground of recovery” .and/or “necessarily referable thereto.” Hence, assuming the validity of said Rule, we think, under the provisions of the Rule, the right to recover the $174 as part of the damages not being conclusively established by the evidence as above shown was waived. If this were the only error it could be corrected by reformation.

The court submitted an (so called) issue of unavoidable accident, as follows: “Do you find from a preponderance of the evidence that the collision was not the result of unavoidable accident?” (italics ours.) Accompanying same was a definition of the term “unavoidable accident” as .follows: “By the term ‘unavoidable accident’ as used in this charge is meant an "event happening suddenly and unexpectedly without the foresight or knowledge and without fault or negligence on the part of either party to this law suit.” Objection was made to the definition to the effect that it was incorrect, in that the proper definition was as follows: “An unavoidable accident is an accident that happened without the negligence of either party to this law suit.” The pleading which tendered the issue was an allegation in defendant’s answer as follows: “This Defendant says if the accident was not caused by the negligence of the Plaintiff, then said accident was an unavoidable accident, as the driver of said taxi was in no way to blame for same.”

Under the definition given by the court the issue was the same as if it had been stated as follows: Do you find from a preponderance of the evidence that the collision was not the result of an accident which happened suddenly and unexpectedly without the foresight or knowledge and without fault or negligence on the part of either party to this lawsuit? Under the definition contended for by defendant, the issue was the same as if it were as follows: Do you find from a preponderance pf the evidence that the collision was not the result of an accident that happened without the negligence of either party to this lawsuit? Neither party pleaded that the collision did not result from an unavoidable accident. The issue was, therefore, evidently stated as it was, under the assumption that it was the same issue pleaded, the only difference being that it cast the burden of proof upon the plaintiff. Under the definition given by the court, a greater burden was cast upon the plaintiff in order to establish the issue, as stated, than would have been the case had the court given the definition suggested by defendant. Under the definition given, plaintiff could not rest with a simple showing that the collision did not result from the negligence of himself or the defendant. It was necessary to go further and show that it did not happen suddenly or unexpectedly without forethought or knowledge, and that it was without fault, if’ any (other than negligence), of either party. In no essential respect, insofar as we can see, did the definition have the effect of placing any less burden upon the plaintiff, and in some respects it did have the effect of casting a greater burden upon him. We, therefore, conclude, without reference to the correctness of the definition given or the one suggested, that defendant could not have been harmed by the definition given.

Without discussion, we overrule all other points of the defendant, except the first, contending there was no evidence of the failure of the taxi-driver to keep a proper look-out, and the second, that there was no evidence that said driver was negligent in failing to keep a proper look-out. The court defined “Proper Look-out” as “Such a look-out as a reasonably prudent person would have kept under the same or similar circumstances.” It may, therefore', be observed, by way of preliminary, that the second of the above two points was, in effect, merely a repetition of the first. The failure to keep a proper look-out, according to the definition given, was the equivalent of negligent failure to keep a lookout. Commercial Standard Ins. Co. v. Shudde, Tex.Civ.App., 76 S.W.2d 561.

Regardless of whether submitted as one or two issues, two issues were actually involved, namely, (1) Did the taxi-driver fail to keep a look-out, and (2) Was such failure, if any, negligence. Defendant, in effect, contends that there was no evidence to support a finding, in the affirmative, of either of said issues. After reading the statement of facts, it is our conclusion that if there was any such evidence, it consisted alone of the fact that the taxi-driver did not see the automobile in time to prevent the collision, and the following testimony of the taxi-driver:

“Q. If this other car [the one in which Plaintiff was sitting] had -had a light on it, could you have seen it? A. Yes.”

There was a direct conflict in the testimony as to whether the car was lighted. Upon a different issue from those now under consideration the jury found, upon such conflict of evidence, that plaintiff did not park the car he was driving in the street without a rear light shining on it “so as to be plainly visible under normal atmospheric conditions for a distance of not less than 500 feet to the rear of said vehicle.” Such finding cannot properly be given any effect as evidence upon the issues now under consideration. The jury also found upon a different issue that “just prior to the collision the driver of defendant’s taxi was blinded by the lights of a car coming in the opposite direction.” Neither of these findings as such add to or detract from the evidence, if any, supporting the issue that the taxi-driver failed to keep a look-out. As we recently had occasion to say, “In considering a question of the existence or sufficiency of evidence to support a verdict upon a particular issue, the entire evidence is properly to be considered unaffected by any conclusion - or finding of the jury upon other and independent issues.” (Italics now supplied.) Dotson v. Braswell, Tex.Civ.App., 172 S.W.2d 985, 986.

There were two ways open to plaintiff to discharge the burden of producing a preponderance of evidence to-show that the taxi-driver was not keeping a look-out. One was to offer direct evidence to that effect. The other was to establish facts from which the ultimate fact in issue could reasonably be inferred or presumed. There was no direct evidence. We cannot agree to the statement in plaintiff’s brief that “The taxi-driver * * * testified that he was looking to the ground just in front of his front fender and was not looking down the street toward where the Plaintiff was.” (Italics ours.) True he was asked a question no doubt designed to elicit testimony to such effect, but the record reflects no answer to the question. The plain purport of the taxi-driver’s testimony in this respect was that he could not see the car because of blinding lights, but could see his own position in the street by looking down over the fender. The duty to keep a look-out includes the duty to look immediately in front, as well as at a distance ahead, and the doing of one carries no implication of failure to do the other.

In the absence of any evidence accounting for the failure of the taxi-driver to see the automobile, it may be that a presumption would exist that he failed to see it because he was not looking. In such case the presumption would in itself be no evidence, but merely a legal procedure the equivalent of evidence, or merely dispensing with the necessity of evidence. But when the taxi-driver testified positively that he did not see the automobile and could not see it because he was blinded by approaching bright lights of another motor vehicle, the presumption was no longer operative. In Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767, Judge Sipedley, speaking for the Supreme Court, said: “It is settled in this state, and by weight of authority elsewhere, that such presumption is not evidence but rather a rule of procedure or an ‘administrative assumption’ which ‘vanishes’ or is ‘put to flight’ when positive evidence * * * is introduced. * * '* It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict.”

This decision settled a conflict in authority which we discussed, but found it unnecessary to determine the question involved, in National Aid Life Ass’n v. Driskill, 138 S.W.2d 238. We have since followed the Muegge decision in Langlitz v. American National Ins. Co., Tex.Civ.App., 146 S.W.2d 484, Hoffer v. Eastland National Bank, Tex.Civ.App., 169 S.W.2d 275, and two or three other cases.

With said presumption eliminated, what evidence was there that the taxi-driver was not keeping a look-out? The fact must not be lost sight of that the burden of establishing the issue by a preponderance of the evidence was upon the plaintiff. In this inquiry we, of course, attach no probative value to the testimony of the taxi-driver to the effect that he was keeping a look-out. The only effect properly to be given his testimony is the elimination of any otherwise possibly existing presumption that he was not keeping a look-out. Unaided by such presumption, the fact of the collision, or fact that the taxi-driver did ■ not see the car, was no evidence that the taxi-driver was not keeping a look-out. Plaintiff was under the necessity of producing some affirmative evidence that he was not keeping a lookout. He could possibly resurrect the presumption by evidence that the taxi-driver was not blinded by the lights, but there was no such evidence. He could possibly support the issue by' evidence requiring no presumption, such as evidence inconsistent with keeping a look-out, but there was no such evidence. There was simply an entire absence of any evidence, unless the before-quoted testimony of the taxi-driver that if the car had been lighted he could have seen it constitutes some evidence.

The testimony on its face shows it to be a matter of opinion, rather than of fact. If in truth the car was lighted, how does that affect the opinion except to show that it was wrong? How can proof of a fact showing the opinion to be wrong have the effect of converting the opinion into evidence tending to show that the taxi-driver was not keeping a lookout? Upon the only issue to which its consideration is here material, the opinion, we think, was wholly without value.

At any rate, as evidence it could not arise to anything more than a mere suspicion or surmise condemned as evidence by the mere scintilla doctrine set forth in the leading case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The conclusion which we reach upon the whole i's that the judgment of the court below should be reversed and the cause remanded. It is accordingly so ordered.