American Produce Co. v. Gonzales

• Decision Date: 18 January 1928
• Docket Number: (No. 845-4916.)
• Citation: 1 S.W.2d 602
• Parties: AMERICAN PRODUCE CO. v. GONZALES.
• Court: Texas Supreme Court

1 S.W.2d 602

AMERICAN PRODUCE CO. v. GONZALES.

(No. 845-4916.)

Commission of Appeals of Texas, Section B.

January 18, 1928.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Frank Gonzales against the American Produce Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (294 S. W. 273), and defendant brings error. Judgments reversed, and cause remanded.

Lewright & Lewright and W. M. Groce, all of San Antonio, for plaintiff in error.

Davis & Lewright, of San Antonio, for defendant in error.

SPEER, J.

This is a personal injury suit brought by defendant in error against plaintiff in error, tried to a jury, resulting in a verdict and judgment in favor of the plaintiff for $5,000, which was affirmed by the Court of Civil Appeals for the Fourth District. 294 S. W. 273.

At the threshold of the case we are asked by defendant in error to sustain a motion to dismiss the appeal to the Court of Civil Appeals. We find no error in the action of the court in that respect.

It is first complained by plaintiff in error that defendant in error's petition is subject to a general demurrer. The proposition is that:

"In a suit for damages for personal injuries, where the plaintiff alleges that such injuries directly resulted from the negligence of the operator of an automobile owned by the defendant and also alleged that such automobile was being operated by the agent, servant, or employee of defendant, without in any manner stating that the operator of such truck was acting within the scope of his employment at the time of the alleged acts of negligence, the trial court should sustain the general demurrer to such petition, and his refusal to do so constitutes error of such nature as to require a reversal of the judgment rendered in such cause."

We cannot sustain this proposition. The rule is that, as against a general demurrer, every reasonable intendment will be indulged in favor of the sufficiency of the pleading. The allegation that the defendant's truck was being operated by its agent, servant, or employee is sufficient, and implies that, at the time, the agent, servant, or employee was acting within the scope of his employment. What one does through an agent, he does himself. The omission complained of could only be reached by a special exception.

The case was submitted upon special issues, among which was:

"(11) What amount of damages, if any, would, if paid now, reasonably compensate the plaintiff for such injuries, if any, as you may find from the evidence to have been sustained by him as alleged in plaintiff's petition?"

In this connection, the court instructed the jury as follows:

"In considering such damages, if any, you may take into consideration pain, if any, suffered or to be suffered by the plaintiff as a direct result of such injuries, if any, together with necessary and reasonable expenses, if any, incurred or to be incurred by plaintiff for physicians' services, hospital bills and medicines as a direct result of such injuries, if any, together with loss of time, if any, up to the present, so resulting."

The defendant duly objected to this instruction, "because there is no sufficient evidence before the jury as to the reasonable amount of any future necessary expenses to be incurred by plaintiff for physicians' services and (or) hospital bills and (or) medicines."

It is insisted by defendant in error that we should not consider the assignment presenting this point, because such alleged error should not be reviewed in the absence of an assignment complaining of the excessiveness of the verdict by reason of the error. But this objection is not tenable. There is no question of "excessiveness," as that term is used in the statutes and decisions involved in this case. Whether or not a verdict is excessive is a question of fact over which the Supreme Court has no jurisdiction (Horton v. Benson [Tex. Com. App.] 277 S. W. 1050), and, moreover, excessiveness of itself is recognized by statute (Rev. St. 1925, art. 1862) as error for which a reversal may be had if not cured by remittitur. The Supreme Court can only review questions of law. Its right and duty to review a question of law duly presented cannot be denied because of the failure of the complainant to present to it another question wholly of fact over which it has no jurisdiction, even though it grew out of the error of law. The nature of the error here complained of is such that any recovery whatever for the elements mentioned would be erroneous in its entirety, not excessive. Every litigant has the right to have his case tried in substantial compliance with the established rules of law, in so far as they affect his substantial rights, for the denial of which he will be entitled to a reversal without the necessity of showing affirmatively that such error was harmful. The rule is well established that error in a material respect calculated to injure the losing party will be cause for reversal unless it reasonably appears that such result did not follow. M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; Houston, etc., Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Hines v. Parry (Tex. Com. App.) 238 S. W. 886; Southern Traction Company v. Wilson (Tex. Com. App.) 254 S. W. 1104; Gulf, etc., Co. v. Harvey (Tex. Com. App.) 276 S. W. 895; San Antonio, etc., Co. v. Alexander (Tex. Com. App.) 280 S. W. 753; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765.

So that there is no need of an attack for excessiveness as a means of showing harm; it is shown, presumptively, by the error. To be sure, in weighing the probable effect of an error, the court will consider the nature of the error and the entire record (Bell v. Blackwell, supra) relevant so...