C & H Transp. Co. v. Wright

• Decision Date: 28 October 1965
• Docket Number: No. 165,165
• Citation: 396 S.W.2d 443
• Parties: C & H TRANSPORTATION COMPANY, Inc., Appellant, v. A. W. WRIGHT, Appellee.
• Court: Texas Court of Appeals

Page 443

396 S.W.2d 443

C & H TRANSPORTATION COMPANY, Inc., Appellant, v. A. W. WRIGHT, Appellee.

No. 165.

Court of Civil Appeals of Texas, Tyler.

Oct. 28, 1965.

Rehearing Denied Dec. 2, 1965.

Richard Grainger, Ramey, Brelsford, Flock & Devereux, Tyler, for appellant.

Charles Clark, Calhoun & Clark, Tyler, for appellee.

MOORE, Justice.

Plaintiff, A. W. Wright, brought this suit against his former employer, C & H Transportation Company, Inc., defendant, alleging in Paragraph II of his petition that during the year 1963 he worked as an employee for the defendant, but on or about March 1, 1964, defendant terminated his employment; that upon termination of his employment, defendant issued him a Driver Settlement Statement in which the company purported to arrive at the amount of money due him by reason of his employment with the company, and that the Driver Settlement Statement contained an entry thereon showing that the company had advanced him the sum of $470.55 on February 12, 1964. He alleged that this amount of money was never advanced to him and by reason of this, the payment made by the company on settlement of the account was $470.55 less than the amount actually owed to him.

He alleges that although he had made numerous demands upon the defendant for the payment of the $470.55, defendant refused to pay the same and he was compelled to employ attorneys to represent him in this connection and was therefore entitled to an attorney's fee in the amount of $225.00.

In addition to the claim, plaintiff also alleged in Paragraph IV of his petition that:

'During the time plaintiff was an employee of Defendant, he was covered by a policy of insurance issued by the Tennessee Life Insurance Company. This was a group insurance plan which covered his hospital and medical expenses and certain disability benefits. Plaintiff does not have a copy of that policy of insurance and hereby makes demand upon Defendant to produce same. While Plaintiff was in the hospital, prior to his termination as an employee of Defendant, and was unable to attend to his own affairs, his wife and father-in-law contacted Defendant in regard to the time which Plaintiff would be terminated as an employee of Defendant. They were assured that Plaintiff would not be terminated until May 1, 1964, and that under the terms and provisions of the said insurance policy that it could be converted to an individual policy by application to the Company within thirty days of the date of termination. Thus, Defendant contracted and agreed with Plaintiff that he would not be terminated until May 1, 1964, but in complete disregard for that contract and agreement Defendant terminated Plaintiff without giving him notice of such fact on March 1, 1964. Plaintiff, unmindful of the fact that he had been terminated on March 1, 1964, gave notice to Tennessee Life Insurance Company on April 28, 1964, that he wished to convert his policy of insurance to an individual policy. Plaintiff did this on the assurance of Defendant that he was not to be terminated until May 1, 1964. However, Tennessee Life Insurance Company notified Plaintiff on June 2, 1964, that since he had been terminated on March 1, 1964, that his application to convert his insurance to individual coverage came too late. By reason of this fact, Plaintiff has been unable to convert the said policy of insurance to an individual policy and by reason of his health at this time he is unable to secure any insurance. By reason of this fact and by reason of his continued disability which in all probability will continue for the remainder of his life, causing Plaintiff to incur hospital and other medical expenses which would have been paid by the Insurance Company under the terms and provisions of the policy referred to hereinabove, Plaintiff has been damaged in the sum of $10,000.00.'

The court rendered a default judgment against the defendant. The judgment recites that the defendant, although duly served with process, failed to appear or answer therein and that the plaintiff was therefore entitled to recover judgment by default; but that it appearing to the court that the cause of action was unliquidated, the court proceeded to hear evidence, and the evidence having been heard by the court and it appearing to the court that the plaintiff had been damaged by the defendant, C & H Transportation Company, Inc., plaintiff was entitled to the following judgment:

'A. The sum of $470.55 as wages due under the employment contract between Plaintiff and Defendant.

'B. The sum of $2000.00 as attorneys' fee in connection with the claim for wages due under the above mentioned employment contract which the court finds to be a reasonable attorneys' fee.

'C. The sum $5000.00 by reason of the breach of the contract not to terminate Plaintiff as an employee of Defendant as set forth in Paragraph IV of Plaintiff's Original Petition to which reference is here made.'

C & H Transportation Company, Inc. has perfected this appeal by writ of error seeking a revision, and correction of the judgment and has assigned three Points of Error, alleging (1) that the petition fails to state a cause of action which would be good as against a general demurrer, and (2) that the judgment does not conform to the pleadings as a matter of law, and (3) that the pleadings do not give fair notice as to the nature of the plaintiff's claim in the relief sought.

The rules authorize the taking of a judgment by default. In order to support such a judgment, it is essential that the petition show a good cause of action upon which a default judgment can be entered. Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58. Under Rule 90, Texas Rules of Civil Procedure it is provided that every defect, omission, or fault in a pleading, either of form or substance, is waived unless complained of in the lower court; but the rule also specifically proves '(T)hat this rule shall not apply as to any party against whom default judgment is rendered.' (Emphasis supplied.)

Rule 47, T.R.C.P. provides that the pleadings must give a party fair notice of the claim involved and it is therefore clear from Rule 90 aforesaid that a party...