Employers Mutual Casualty Company v. Poorman, 14679

• Decision Date: 10 April 1968
• Docket Number: No. 14679,14679
• Citation: 428 S.W.2d 698
• Parties: EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Van POORMAN, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 698

428 S.W.2d 698

EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Van POORMAN, Appellee.

No. 14679.

Court of Civil Appeals of Texas San Antonio.

April 10, 1968.

Rehearing Denied May 8, 1968.

Allison & Wallace, Kerrville, Groce, Hebdon, Fahey & Smith, San Antonio, for appellant.

Carroll, Matthews & Willatt, Houston, Robert R. Barton, Kerrville, for appellee.

BARROW, Chief Justice.

Appellee, a ranch foreman of C. O. Beeler, d/b/a Riverside Development Company, brought this suit to recover benefits under a voluntary workmen's compensation policy issued by appellant to Beeler. Judgment was entered on a jury verdict whereby appellee recovered compensation benefits in a lump sum for total and permanent incapacity at the maximum rate, together with the sum of $3,013.62 for past hospital and medical expenses rendered appellee. Appellee also recovered judgment for the sum of $7,280.00 representing the reasonable cost of future hospital and medical services that will in reasonable probability be necessary for treatment of appellee as a result of the injury sued on herein. (Special Issue No. 15.) This appeal relates only to the recovery of future medical expenses.

Appellant's sole point is that 'The trial court erred in overruling Appellant's motion to set aside the finding of the jury in answer to Special Issue No. 15.' By counterpoint, appellee urges that appellant failed to preserve its complaint for appellate review . Appellant concedes that its original motion for new trial was only a formal motion and it did not timely file an amended motion; however, appellate review is sought under Rule 324, Texas Rules of Civil Procedure, wherein it is provided: 'In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court * * * in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant; * * *.' See Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1966); Firemen's Fund Ins. Co. v. Martinez, 387 S.W.2d 443 (Tex.Civ.App.--Austin 1965, writ ref'd n.r.e .).

Appellant timely filed its motion for judgment and to set aside findings of the jury wherein it urged that the court should dismiss the suit for want of jurisdiction because there was no proof the injury was sustained in Kerr County. In the alternative, appellant moved to set aside the finding of the jury to Issue No. 15 because future medical expenses were not recoverable in this suit under the Workmen's Compensation Act. Also, in the alternative, appellant sought to set aside the finding of the jury to Issue No. 14 (past medical expenses) because there was no proof that it had failed to furnish same to appellee.

Appellee urges that since there was no prayer by appellant asking the trial court to render judgment for appellee for all sums except that found in Issue No. 15, appellant's motion to disregard this finding does not come within the provisions of Rule 324. In Hines v . Parks, 128 Tex. 289, 96 S.W.2d 970, 972 (1936), the Commission of Appeals, in discussing the question of what Art. 2211, Vernon's Ann.Civ.St. (now Rule 301, T.R.C.P.) meant by the requirement of 'motion and reasonable notice,' set forth that the motion must be sufficient to invoke the jurisdiction of the court and should apprise the court and opposing party of the grounds therefor, and must sufficiently disclose its nature. It was further said: 'We amplify this general statement by saying that such a motion, regardless of its form, would be sufficient if it designated the finding or findings which the court is called upon to disregard, the reason why same should be disregarded, and contained a request that judgment be entered upon the remaining findings after the specified findings has been set aside or disregarded.'

Appellee urges that the quoted language requires the moving party seeking to have the court disregard a jury finding to affirmatively request that judgment be entered upon the remaining findings. It is seen that the holding in Hines is that the trial court was not authorized to disregard a jury finding in the absence of the statutory requirement of reasonable notice.

Rule 301, T.R.C.P., contemplates two type of motions: (1) judgment non obstante veredicto and (2) for disregard of any jury finding. We have found no authority which holds that a motion to disregard a jury finding is insufficient where the movant does not request that judgment be entered on the remaining findings. In Pelham Manufacturing Co. v. Ridlehuber, 356 S.W.2d 502 (Tex.Civ.App.--Waco 1962, writ ref'd n.r.e.), it was held that defendant's motion to disregard a jury finding of medical expenses preserved said point for appellate review although no motion for new trial was filed. It is seen that in addition to this finding of medical expenses, plaintiff had also recovered $2,000.00 for his personal injuries. The Court pointed out that the 1955 amendment to Rule 324 added the words 'or notwithstanding the finding of the jury on one or more special issues' to the provision authorizing complaint on appeal of the overruling of a motion for judgment non obstante veredicto without a motion for new trial. See also First American Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.); Teston v. Miller, 349 S.W.2d 296, 299 (Tex.Civ.App.--Beaumont 1961, writ ref'd n.r.e.);...