Dalby v. Lyle

• Decision Date: 10 May 1937
• Docket Number: No. 4761.,4761.
• Parties: DALBY v. LYLE.
• Court: Texas Court of Appeals

105 S.W.2d 764

DALBY v. LYLE.

No. 4761.

Court of Civil Appeals of Texas. Amarillo.

May 10, 1937.

Appeal from Hale County Court; H. M. La Font, Judge.

Suit by Mrs. C. A. Lyle against A. R. Dalby. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

P. B. Randolph, of Plainview, for appellant.

Meade F. Griffin and Lucian Morehead, both of Plainview, for appellee.

JACKSON, Justice.

The appellee, Mrs. C. A. Lyle, a feme sole, instituted this suit in the county court of Hale county against the appellant, A. R. Dalby, alleged to be doing business under the name of Dalby Motor Freight Lines, to recover $300 for personal injuries, $36 for doctors' bills, $100 for loss of earnings, and $514 for damages to her automobile, claimed to have been occasioned by the negligence of appellant, its agents, servants, and employees.

She alleged that appellant was engaged as a common carrier in transporting freight by motortruck upon the public highways of the state and particularly on the highway between Amarillo and Lubbock; that about 10 o'clock p. m., January 31, 1936, while on the highway approaching the city of Plainview from Lubbock in her 1934 Buick sedan, which was operated by Mrs. R. L. Lock, the appellant's truck, traveling in the opposite direction, in rounding a curve on the highway, collided with her sedan. She averred that appellant was guilty of fifteen separate acts of negligence.

The appellant demurred generally, urged special exceptions, charging that certain allegations in appellee's petition were but opinions and conclusions, general denial, and pleaded that both appellee and her driver were guilty of numerous separate acts of contributory negligence.

Only two of the acts of negligence pleaded by appellee were submitted by the court, but in response to the issues submitted, the jury found that the driver of appellant was operating the truck at a speed in excess of 25 miles per hour; that the truck at and immediately preceding the collision was on the east or wrong side of the highway; that each of such acts of negligence was the proximate cause of the collision; and that appellee was damaged in the sum of $500.

The only issues of contributory negligence pleaded by appellant that were submitted to the jury were found in favor of appellee.

On the verdict, judgment was entered against A. R. Dalby and in favor of appellee for the sum of $500 and cost.

The issue of damages was over appellant's objection submitted to the jury in the following question and instruction:

"Special Issue No. 13:

"What amount of money if paid now would fairly and reasonably compensate plaintiff for her injury, if any, sustained to her person and automobile? (Answer in dollars and cents.)

"In determining your answer to Special Issue Number Thirteen, you may consider the nature and extent of the injuries, if any, to plaintiff's person, including any physical and mental suffering, if any, she suffered, any drug and hospital bills, physicians' bills which were necessarily incurred by plaintiff in the proper treatment of her injuries, if any, which were reasonable and proper charges for same; loss of time and earning, if any, from her business. You may also consider in determining the injuries, if any, to plaintiff's automobile, the reasonable market value of same just before the collision and immediately thereafter in the vicinity of Plainview, Texas, in the light of the evidence presented to you in connection therewith."

The appellant objected to the form of this issue for, among others, the following reasons: (1) Neither the pleading nor the testimony authorized the submission of such issue; (2) the testimony failed to show the amount of drug, hospital, or physicians' bills, or that such bills, if incurred, were reasonable; (3) the issue was multifarious; (4) did not limit the jury to the damages proved; and (5) the testimony did not authorize the consideration of the loss of earnings.

After alleging that the collision resulted in damages to her automobile in the sum of $514.39, and the personal injuries she suffered, the allegations are: "Plaintiff would further show that she was confined to her bed and that she has been unable and is still unable to attend to her duties and her household, and that she has also been unable to attend to the business known as Flaxman Style Shop, of which she is part owner, operator and manager. Plaintiff would also show that she has been forced to expend $36.00 for doctors' bills. Plaintiff would further show that she has been damaged $100.00 as a result of her inability to attend to her business, as aforesaid, and $300.00 for physical and mental pain and suffering."

It will be noted that the court advised the jury that in determining the amount that would fairly and reasonably compensate appellee for her personal injuries, they might consider any drug and hospital bills which she had necessarily incurred, but these two items were not included in her petition.

The appellant's contention that there is no testimony in the record to show that the doctors' bills or what she expended to hire assistance for running the...