City of Fort Worth v. Barlow

• Decision Date: 02 May 1958
• Docket Number: No. 15898,15898
• Citation: 313 S.W.2d 906
• Parties: CITY OF FORT WORTH et al., Appellants, v. Don BARLOW et al., Appellees.
• Court: Texas Court of Appeals

Page 906

313 S.W.2d 906

CITY OF FORT WORTH et al., Appellants, v. Don BARLOW et al., Appellees.

No. 15898.

Court of Civil Appeals of Texas, Fort Worth.

May 2, 1958.

Rehearing Denied June 6, 1958.

R. E. Rouer, S. G. Johndroe, Jr., John Gano, G. Gordon Whitman, Earl C. Morgan, and Robert R. Goodrich, Fort Worth, for appellant City of Fort Worth.

Hill & Paddock and Homa S. Hill (on appeal only), Fort Worth, for appellant Lake Worth Beach Co.

McGown, Godfrey, Logan & Decker, John W. McMackin and Winfred Hooper, Jr., Fort Worth, for appellee Don Barlow.

William P. Rogers, Atty. Gen., of United States, J. B. Engledow, George E. Hughes and Thos. E. Ball, Dallas, and W. B. West III, First Asst. U. S. Atty., Northern District of Texas, Fort Worth, for Intervener, Administrator of Veterans' Affairs.

RENFRO, Justice.

The plaintiff Barlow sued Lake Worth Beach Company for injuries sustained when he dived from a swing diving device constructed by Beach Company in Lake Worth, and sued the City of Fort Worth as owner in fee of the property where the accident occurred.

The jury found that the depth of the water where the swing was located created an inherently dangerous condition for diving purposes; Beach Company was negligent in failing to warn plaintiff of the depth of the water, in allowing the public to use the swing device, in failing to move the device to deeper water, and in failing to deepen the area in front of the swing; that the city was negligent in failing to inspect the area and inform plaintiff of the depth of the water and in allowing the swing device to be open to the public. Each of the above acts of negligence was found to be a proximate cause; that the inherently dangerous condition existed for a sufficient length of time to have been discovered by both defendants, that the inherently dangerous condition was a proximate cause. All issues on contributory negligence were answered favorably to plaintiff.

The extent of the injuries sustained by plaintiff is not questioned. At the time of the injury he was 23 years of age with a life expectancy of 47 years. The evidence showed that his spinal cord was severed by a shearing motion of the sixth and seventh cervical vertebrae. He was completely paralyzed from the shoulders down. The paralysis will be permanent. The total paralysis had a degenerative effect on almost every part of his body. He has a slight motion with his arms, but his hands are useless. He has lost control of his kidneys, bladder and bowel functions. He must wear a catheter. He is subject to involuntary muscle spasms. In his present condition he has a probable life expectancy of 24 to 30 years. He will require medical treatment every year as long as he lives. He will require constant nursing as long as he lives. According to medical testimony, plaintiff is unable to do anything for himself and someone will have to take complete care of him twenty-four hours per day. There was considerable evidence as to past pain and suffering and probable future suffering.

In answer to issue No. 37 the jury found that for past and future pain and loss of earnings, past and future, $103,760 would reasonably and fairly compensate plaintiff. In answer to No. 37-B the jury found that in reasonable probability plaintiff would reasonably and necessarily incur in the future $110,000 for nursing care, $9,000 for doctors' bills, and $18,000 for medicine. The judgment entered also allowed the intervener, Administrator of Veterans Affairs, the sum of $7,485.65 for services rendered plaintiff prior to trial.

The defendant Beach Company in its first three points of error, briefed as a group, contends the court erred in (1) overruling its plea in abatement and in permitting plaintiff and intervener to recover for damages in which the United States had an interest; (2) submitting issues on medical, hospital, nursing, doctor's and other expenses in favor of either plaintiff or Veterans Administrator; (3) instructing defendant to 'in no way before the jury allude to or to attempt to prove that the plaintiff is or might be entitled to receive free hospitalization or medical treatment from the U. S. Government after the date of this trial.'

The Administrator of Veterans Affairs, by virtue of an assignment from plaintiff, intervened in the suit on behalf of the Veterans Administration for cost of medical services rendered plaintiff subsequent to the injury and prior to the trial. Beach Company filed a plea in abatement on the ground the Administrator was not a proper party, but that the United States was a proper and necessary party. The plea in abatement was overruled.

George E. Hughes, Assistant Chief Attorney with the Regional Office of the Veterans Administration, testified that he and Thomas E. Ball as attorneys for the Veterans Administration filed the plea in intervention; that Ball acted in his official capacity as a representative of the United States Government; that they had specific letter of instruction from their General Counsel in Washington to intervene; that for the last five years his office had functioned as attorneys for the Veterans Administration and through it for the United States of America in the state courts of Texas and the authority so to act had never been questioned. A letter addressed to Thomas Ball, Chief Attorney, Veterans Administration, Regional Office, Dallas, Texas, signed by Heard L. Floore, United States Attorney, was introduced. In the letter Mr. Floore authorized Mr. Hughes and Mr. Ball to enter an appearance on his behalf and take such further action as necessary to protect the United States Government in the proceedings. Attached to the Floore Letter was a telegram from Russell Chapin, Chief Veterans Affairs, Section Civil Division of the Department of Justice, requesting Floore to make the above authorization.

We think the foregoing is sufficient authority for the named attorneys to represent the Government. United States v. Hall, 9 Cir., 145 F.2d 781; United States v. Muntzing, D.C., 69 F.Supp. 503. The participation of attorneys with authority to 'take such further action as is necessary to effectively protect the interest of the United States Government,' and their acquiescence in the action of the trial court in granting judgment for the administrator were sufficient to bind the United States Government, even though it was not specifically named as a party, and there is no danger that Beach Company will be subjected to double liability for the amount of the judgment rendered for the Administrator.

It is of interest to note in passing that the brief filed in this court for intervener is signed William P. Rogers, Attorney General of the United States, by W. B. West III, First Assistant United States Attorney, Northern District of Texas, and bears above the same signature this statement:

'The United States of America by the undersigned hereby adopts the foregoing brief as that of the United States of America, and further, expressly adopts the brief of Don Barlow, Appellee, in the above entitled and numbered cause.

'It is further stated that the United States of America was represented in the trial of this cause by duly authorized attorneys; that the interest of the United States of America in this proceeding is fully represented by the intervention of the Administrator of Veteran's Affairs functioning in his official capacity as a representative of the United States of America; that the United States of America has by such intervention voluntarily submitted itself to the jurisdiction of the courts of the State of Texas; and that the United States of America is fully and completely bound by any judgment rendered in this cause by the courts of the State of Texas.'

While we of course are not bound by the conclusions of the Attorney General of the United States, we have quoted the above because it concisely sets forth our view in regard to the status of the parties herein. We think all parties who had an interest in the cause of action were in court in such a manner that the judgment rendered was conclusive of the rights of all parties who owned or might own an interest therein to the extent that Beach Company can not be compelled to twice pay for the medical services rendered by the Government. Morales v. Roddy, Tex.Civ.App. 250 S.W.2d 225.

We overrule Beach Company's point of error to the effect that the court erred in overruling its plea in abatement.

Next we consider Beach Company's point leveled at the allowance of judgment for the intervener for the services rendered prior to the trial.

Plaintiff was a veteran, qualified for medical service in a Government hospital by virtue of Title 38 U.S.C.A. Sec. 2501 et seq. He was not charged for the services, but assigned his claim for medical services to the time of the trial to the Administrator.

In 13 Tex.Jur., p. 248, sec. 133, the rule is pronounced, 'An exemption from liability for the expenses of medical treatment cannot be successfully claimed by the defendant on the ground that the services were voluntarily and gratuitously rendered, the reason being that the gratuity is for the benefit of the injured person and may not be claimed by the one who caused the injury.' To the effect is Sainsbury v. Pennsylvania Greyhound Lines, 4 Cir., 183 F.2d 548, 21 A.L.R.2d 266.

In Plank v. Summers, 203 Md. 552, 102 A.2d 262, 266, the question before the court was whether the plaintiff was entitled to the reasonable value of hospital and medical services rendered to him without charge by a navy hospital. The court, after citing many cases, held: 'It therefore appears that the majority of the cases hold that where hospital and medical services are furnished gratuitously to the injured party, he can recover the value of those services from the tort-feasor. This seems to be the modern rule. Here also it might well be considered that medical and hospital services supplied by Government to these members of the United States...