Argonaut Southwest Ins. Co. v. Morris, 11545
| Decision Date | 08 November 1967 |
| Docket Number | No. 11545,11545 |
| Citation | 420 S.W.2d 760 |
| Parties | ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellant, v. John E. MORRIS, Jr., Appellee. . Austin |
| Court | Texas Court of Appeals |
L. W. Anderson, Dallas, C. C. Small, Jr., Austin, for appellant.
J. Hubert Lee, Austin, for appellee.
This is a workmen's compensation case in which the insurer, Argonaut Southwest Insurance Company is appellant and the employe, John E. Morris, Jr., is appellee.
Previously overruled by us is a motion filed by appellee to dismiss this appeal for want of jurisdiction. We will now state the reasons for denying this motion.
The final judgment was signed and entered January 31, 1967. Appellant filed a motion for new trial February 6, 1967. February 28, 1967, appellant filed an amended motion for new trial.
On March 21, 1967, appellant filed a motion asking that its amended motion for new trial be considered as timely filed for the reason that since the last day for filing, February 26, fell on Sunday that Monday February 27th would be the last day for filing and that it, on February 25, 1967, prepared and mailed to the clerk of the trial court by depositing the same in the United States mail its amended motion for a new trial, but that for some reason this amended motion was not received by the clerk until February 28, 1967 .
This motion, of March 21, 1967, was granted by the trial judge.
The amended motion for a new trial was overruled by order signed March 22, 1967.
Notice of appeal was given in this order and a separate notice of appeal was filed March 27, 1967. Appeal bond was filed March 31, 1967. The record was filed in this Court on May 4, 1967.
Rule 329b requires an amended motion for new trial to be filed within 20 days after the original motion for new trial is filed. We agree with appellee that appellant's motion that the amended motion for new trial be considered as having been timely filed is insufficient to sustain the order of the trial judge granting such motion. It is agreed that the factual allegations of the motion constitute the only evidence offered to support the motion. It was also agreed that such factual allegations should be considered as evidence.
These allegations do not comply with the requirements of Rule 5, Texas Rules of Civil Procedure, namely, that the motion be sent by first class mail in an envelope or wrapper properly addressed and stamped, and the envelope or wrapper containing same bears a postmark showing a timely deposit.
Disregarding the amended motion for a new trial and considering only the original motion for a new trial, Rule 329b provides that such motion shall, if nothing else transpires, be overruled by operation of law 45 days after the same is filed. Here, nothing within the rule transpired after the original motion was filed and it was overruled 45 days after it was filed, to wit, March 23, 1967.
As shown above, the necessary appellate steps were timely taken after March 23, 1967.
Appellee also says that since appellant gave notice of appeal from the judgment and from the order overruling its amended motion for a new trial that it has restricted its appeal in some manner. An appeal is from the judgment or some portion of it and not from the order overruling a motion for new trial. Rule 353(b) T.R.C.P.
The trial was to the court without a jury. Judgment was rendered for appellee for total and permanent disability.
Appellant's first point is that the trial court erred in permitting appellee to testify to statements made to him by Doctors B. F. Simms and Robert Farris regarding his physical condition, appellant objecting that such statements were hearsay. Upon such objections being overruled, appellee testified at length to statements attributed to these doctors concerning his physical condition.
It is quite true that unsworn, out of court statements made by doctors with reference to the physical conditions of their patients is hearsay and inadmissible. Traders and General Insurance Company v. Wheeler, 271 S.W.2d 679, Tex.Civ.App. El Paso, writ ref. n.r.e. It is equally true that such statements in the nature of admissions against interest are admissible against a principal when made by an agent within the scope of his duties. Texas Law of Evidence, 2nd ed ., McCormick and Ray, Vol. 2, Sec. 1164. 31A C.J.S. Evidence § 343, p. 834.
Appellant has admitted that it requested Dr. Simms to examine appellee and that it received reports from Dr. Farris regarding the condition of appellee. There is evidence that the doctors to whom appellee's employer sent him were Doctors Simms and Paulsen and that they sent him to Dr. Farris.
The admissions and testimony are sufficient to support an implied finding that the doctors named were agents of appellant. It is our opinion that the statements made by these doctors regarding the physical condition of appellee were admissible. See Vineyard v. Texas Employers' Ins. Association, 263 S.W.2d 675, Tex.Civ.App. Dallas, writ ref. n.r.e.; Bituminous Casualty Corporation v. Jordan, 351 S.W.2d 559, Tex.Civ.App. Waco, n.w.h.
Point one is overruled.
The second point of appellant is that the trial court erred in receiving in evidence the payroll records of appellant relating to Halden Lloyd Holstien in order to prove the wage rate of appellee under subdivision (2) of Sec. 1 of Art. 8309, V.T.C.S., for the reason that there was no evidence that Mr. Holstien had worked in Austin or in a neighboring place for 210 days during the year immediately preceding the date of appellee's accident.
Appellee was employed by the Cecil Ruby Construction Company in Austin, Texas, when he was injured in the scope of his employment on September 14, 1965. He had not worked in the employment in which he was working at the time of his injury for the same or a different employer for 210 days during the year immediately preceding his injury. Sub. (2), supra, provides that in such case an employee's average weekly wage should be calculated from the average weekly wage or salary of an employee of the same class working 210 days in the year immediately preceding in the same or similar employment 'in the same or a neighboring place.'
In attempting to make the requisite proof under this subdivision, appellee called the payroll clerk of the Cecil Ruby Company, Mrs. Sarah Darby Holland, who lived in Austin. We quote from her testimony:
'Q I will ask you if you brought with you the record of any employee of the Cecil Ruby Company that does a similar work to the work done by John Morris, namely a truck driver, driving those large highway construction trucks? Did you bring the record of another employee?
A I brought the records of another one as close as I could to this man.
Q What does that man do?
A He is a truck driver.
Q The same type of trucks?
A Yes.
Q Has he worked for the company for a year or more before September 14, 1965?
A Yes, sir.
Q Do you have that record with you?
A Yes, sir.
Q Does that employee work in the same area as John Morris did?
A He has worked in the same area and other areas also.
Q And at the time between--the year just before September of 1965, his job was about the same as John Morris?
A Yes, sir.
Q And he was paid out of the same office as John Morris was?
A Yes, sir.
Q And he was driving whatever truck that he had driven in the same way that John Morris would have to do?
A Yes, sir.
Q And that is in Travis County and other surrounding territory, is that right, both of them?
A Yes, sir, wherever they were working.
Q Wherever they were sent?
A Yes.
Q Where is the company based--the main office of this company, the Cecil Ruby Construction Company?
A In the Brown Building, 907 Brown Building.
A Yes.'
On cross examination by appellant, Mrs. Holland testified:
'Q Mrs. Holland, Cecil Ruby and Company, Inc., is your employer, is that correct?
A Yes.
Q They have jobs pending in numerous parts of the state, do they not?
A Yes, sir.
Q I believe actually most of your operations now are in Dallas. Isn't that true?
A Yes, but in other places, also.
Q Yes, I understand. In fact, during this time Mr. Holstien worked for you, you had operations in Big Spring and San Marcos and Dallas and all over the state; isn't that right?
A Yes.
Q I believe that's all.'
On redirect examination, she testified:
'Q Mrs. Holland, I will ask you if the wages that are paid are the same whether the man traveled to Dallas or stayed in Travis County?
A The wages are based on the Federal wage requirements and the men are paid according to the wage scale on each project that is awarded to our company, and then some of the men who have been with us and are good employees make more than that wage scale.
Q But what I was trying to arrive at is whether the wages in Dallas or Big Spring or whatever are different than in Austin?
A No, that has no bearing on what the man makes.
Q So far as the location of the job, they are paid the same wages?
A Yes.'
The payroll record of Mr. Holstien was admitted in evidence. It shows that his address was given as Edna, Texas. There is a line on the record under which these printed words appear 'Dept. or Place of Work.' This line is blank.
The trial court made this finding:
'That Plaintiff had not worked for at least 210 days during the year immediately preceding the date of his injury but that there was an employee of the same class as Plaintiff employed in the same or similar employment as Plaintiff, in the same or neighboring place who did work at least 210 days of the year immediately preceding the date of Plaintiff's accidental injury on September 14, 1965, and that such employee was Haldon Lloyd Holstien, and that his average weekly wages were not less than $70.00 per week.'
Mrs. Holland in explaining these records testified that they reflected the regular weekly pay of Mr. Holstien, his overtime and his gross weekly pay, and that a week was from Sunday through...
To continue reading
Request your trial
-
Duncan Land & Exploration, Inc. v. Littlepage
...505, 129 S.W.2d 270, 279 (1939); State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 279 (1939); Argonaut Southwest Ins. Co. v. Morris, 420 S.W.2d 760, 774 (Tex.Civ.App.-Austin 1967, writ ref'd n.r.e.); see also Vargas v. State, 838 S.W.2d 552, 557-58 (Tex.Crim.App.1992) (Benavides, J., concurr......
-
Holliman v. Leander Independent School Dist.
...avoided the resulting conflicting findings of this jury. This Court has previously held in Argonaut Southwest Insurance Company v. Morris, 420 S.W.2d 760, 766 (Tex.Civ.App.1967, writ ref'd n.r.e.) that a liberal construction of the act requires "but slight proof of the applicable wage rate"......
-
Granviel v. State
...of the exhibit to which the objection is directed. Bouchillon v. State, 540 S.W.2d 319. See also Argonaut Southwest Insurance Company v. Morris, 420 S.W.2d 760 (Tex.Civ.App.1967). Admission or exclusion of hospital records is not reversible error in absence of a showing of harm to the compl......
-
Perkins v. Park View Hospital, Inc.
...the records of the hospital, and did not involve an admission of an alleged agent. Plaintiff also cites Argonaut Southwest Insurance Co. v. Morris, Tex.Civ.App., 420 S.W.2d 760 (1967), however in that case, the unsworn statements were made to plaintiff by doctors during an examination of pl......