City of Galveston v. Hill

• Decision Date: 16 January 1952
• Docket Number: No. A-3320,A-3320
• Citation: 246 S.W.2d 860,151 Tex. 139
• Parties: CITY OF GALVESTON v. HILL et al.
• Court: Texas Supreme Court

Page 860

246 S.W.2d 860

151 Tex. 139

CITY OF GALVESTON v. HILL et al.

No. A-3320.

Supreme Court of Texas.

Jan. 16, 1952.

Rehearing Denied April 2, 1952.

Willams & Thornton, Galveston, for petitioner.

Armstrong, Barker, Bedford & Lambdin, Owen D. Barker, Royston & Rayzor and M. L. Cook, Galveston, for respondents.

GRIFFIN, Justice.

Etheridge Hill and Leopold Gonzales, as plaintiffs, sued the City of Galveston, Texas, defendant, as a third party tortfeasor, alleging in substance that plaintiffs were working for Southern Stevedoring Company, Incorporated, loading grain into the holds and bins of a certain steamship which was upon the navigable waters of Galveston harbor. In general, it was alleged by plaintiffs that defendant City owned a certain 'Elevator B' on the wharf at Galveston from which the grain was being loaded into the steamship, alongside, by long pipes, etc.; that while the grain in question was in the City's 'Elevator B' it was caused to be fumigated by the City and that due to the negligence of the City's representatives in certain respects the grain became laden with poisonous and injurious gases, etc. The plaintiffs in their same petition, joined, as a defendant, the Texas Employers' Insurance Association, as the insurance carrier of the Stevedoring Company, and alleged that said insurer had paid to plaintiffs certain compensation benefits, in connection with plaintiff's injuries, and prayed that the insurer be required to assert its claim for recoupment for any sum recovered by the plaintiffs in this third party action against the City. It was further alleged that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, governed this suit, and that under such Act the plaintiffs had taken the necessary steps and given all proper notices to bring about an election to recover against the third party tort-feasor, instead of the compensation carrier of plaintiffs' employer, the Stevedoring Company. The City filed first only a formal answer. After the filing of the formal answer by the City the insurance carrier filed its answer to both the plaintiff's petition and the City's answer and filed a cross-action against the City to which the City filed a formal answer. Here the pleadings stood, so far as is shown by the transcript, for some eight or nine months when the parties filed additional pleadings shortly prior to, at the time of, and during the trial of the cause before a jury. About a week prior to trial date the City filed its first amended original answer to plaintiffs' petition and the insurance carrier's cross-action against the City, and also filed a cross-action against the insurance carrier wherein the City alleged in effect 'that, as appears from the petition of plaintiffs herein, and from the answer of the said Texas Employers' Insurance Association', the latter at the time of plaintiffs' alleged injuries, was the insurance carrier of the employer, Stevedoring Company, under the provision of the Longshoremen's and Harbor Workers' Compensation Act, and other allegations against the plaintiffs and Stevedoring Company wherein it is alleged that the injuries received by plaintiffs were not the result of any negligence of the City, but solely the result of the negligent act of the Stevedoring Company. The City had an allegation just before the prayer to the effect that such injuries, if any (which was not admitted) were received in the hold of a sea going vessel and that under the maritime law, the City 'is entitled to a contribution from its codefendant Texas Employers' Insurance Association, as the insurance carrier of the Stevedoring Company, in any amount which plaintiffs herein, or either of them, may recover against this defendant.' The prayer asked that in the event plaintiffs, or either of them, recovered a judgment against the City, the City have a judgment against its co-defendant Texas Employers' for a proper and just contribution upon such judgment. The plaintiffs and the insurance carrier in the same instrument filed a motion to strike and dismiss the City's above cross-action because (a) it states no cause of action against the insurance carrier, and (b) no negligent acts are alleged against the insurance carrier, and (c) there is no allegation of any relationship between the Stevedoring Company and the insurance carrier 'except that Texas Employers' Insurance Association carried workmen's compensation on the employees of Southern Stevedoring Company, Inc.'; that the mere filing of the cross-action and reading of the same to the jury is grossly prejudicial to plaintiffs and the insurance carrier because it will create the erroneous impression that the Stevedoring Company is covered with public liability insurance, and encourages the jury to find the Stevedoring Company negligent and therefore liable for injuries suffered by plaintiffs. This motion was overruled by the court and the losing parties excepted. Some two days later the City filed a 'Motion for Instructions and Relief' and upon which the court acted the same day. On the same day, and without waiving its motion to strike, the insurance carrier filed an answer to the City's first amended original answer and cross-action against the insurance carrier (the same pleading to which the motion to strike and dismiss was directed). It is not necessary to set out any part of this instrument.

On June 29, in answer to special issues, the jury found that the City was not negligent in any of the various particulars alleged and submitted. They did find that plaintiffs were rendered ill by inhaling poisonous or injurious fumes while working in the hold of the vessel; that the fumes came from the grain; that the injuries were the result of an unavoidable accident; that the inhalation of the fumes by plaintiffs was not due to the negligence of the City; that plaintiffs were not guilty of contributory negligence; that plaintiff Hill had been damaged to the extent of $7,500 and Gonzales to the extent of $6,000; that Southern Stevedoring Company, Incorporated, was negligent and that such negligence was the proximate cause of plaintiffs' injuries.

Upon these answers the trial court rendered its judgment that plaintiffs and the insurance carrier take nothing against the City on their respective pleadings.

In due time the plaintiffs and the insurance carrier filed their joint motion for new trial, which was amended, and the court, 'having considered said motion and having heard the argument of counsel thereon', overruled said motion. The motion complained of the action of the trial court in permitting the City to file its cross-action against the insurance carrier upon the grounds that by the filing of the cross-action the City injected insurance into the case to the prejudice of the plaintiffs and the insurance carrier; and also that said cross-action stated no cause of action against the insurance carrier. For the first time complaint was made to certain argument by one of the counsel for the City upon the grounds that same was prejudicial and inflammatory. A bill of exceptions complaining of the same argument was later prepared and filed within time to be included in the transcript on appeal. The bill recites '* * * to which argument neither counsel for plaintiffs nor Texas Employers' Insurance Association, nor the Court interposed an objection at the time such argument was being made.'

This judgment has been reversed and remanded by the Court of Civil Appeals in 241 S.W.2d 229, upon the ground that the plaintiffs' and insurance carrier's motion to dismiss the City's cross-action against the insurance carrier should have been sustained and that the failure to sustain the motion and the reading of the pleadings to the jury was such prejudicial action as to require a reversal of the case, because such cross-action informed the jury that the Stevedoring Company was covered by insurance; and generally followed the reasons advanced by the proponents of the motion to strike the cross-action of the City.

There is no statement of facts setting out the testimony upon the main trial or the motion for new trial. There is a partial statement of facts with the record, but it only purports to cover a part of what transpired in the trial judge's chambers in acting upon the City's pleading denominated 'Motion for Instructions and Relief'. There is not shown in the transcript any action of the court on the above motion nor anything to show it was ever presented to the court in open court.

There being no statement of facts in the record we must presume that there was evidence to support the verdict of the jury and judgment of the court. Schweizer et al. v. Adcock et al., 145 Tex. 64, 194 S.W.2d 549; Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363; Moore v. Hardison, 10 Tex. 467, 3B Tex.Jur. 374, Sec. 912 et seq.

We understand the respondents...