Spears Dairy v. Davis

WALKER, Chief Justice. This is a companion case with Spears Dairy, Inc. v. Lilla Ruth Davis et al., Tex. Civ.App., 124 S.W.2d 159, opinion affirming judgment of the lower court handed down on the 29th day o,f December, 1938. We have read the entire statement of facts on this appeal to determine whether any new fact was developed, distinguishing this case from the Lilia Ruth Davis case. It is our conclusion that, on the determinative issues, there is no distinction between the two cases. For the most part, this appeal is presented upon the same propositions and assignments of error reviewed in the Lilia Ruth Davis case, and insofar as they are the same, they are overruled. The verdict in this case of $800 was not excessive. The evidence raised the issue that John Arthur Davis, a little boy three years old, was severely injured — he had a severe blow on his head; suffered a severe head injury; the head bones were probably injured; he suffers a discharge from one of his ears as a result of his injury. As fundamental error appellant attacks the charge of the court in certain respects; we say as “fundamental error” because the point was not raised by an exception to the charge. The point is overruled. If it be conceded that the evidence does not support the finding on the issue — 383 — of “turning to the left,” the point is immaterial; the evidence clearly supports the findings of negligence and proximate cause on the issues of the rate of speed at which appellant’s truck was being operated. The assignment that the jury was guilty of misconduct was submitted on conflicting testimony; the judgment of the court overruling the motion for new trial on this point has support. The judgment should be in all things affirmed, and it is accordingly so ordered. Affirmed.