Farmers' & Mechanics' Nat. Bank v. Marshall

• Decision Date: 10 December 1927
• Docket Number: (No. 11885.)
• Citation: 4 S.W.2d 165
• Parties: FARMERS' & MECHANICS' NAT. BANK v. MARSHALL.
• Court: Texas Court of Appeals

Page 165

4 S.W.2d 165

FARMERS' & MECHANICS' NAT. BANK v. MARSHALL.

(No. 11885.)

Court of Civil Appeals of Texas. Fort Worth.

December 10, 1927.

Rehearing Denied February 11, 1928.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by Mary Lou Marshall against the Farmers' & Mechanics' National Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

Marvin H. Brown and Mayer, Rowe & Brown, all of Fort Worth, for appellant.

Phillips, Brown & Morris, of Fort Worth, for appellee.

DUNKLIN, J.

The Farmers' & Mechanics' National Bank has appealed from a judgment rendered in favor of Mary Lou Marshall for damages as the result of personal injuries alleged to have been sustained by her while alighting from a passenger elevator operated by the defendant in its bank building in the city of Fort Worth for the use of its tenants and the public.

According to allegations in plaintiff's petition, on October 29, 1925, she entered the elevator for the purpose of going to the twenty-second floor of the building, and when she reached that floor and while alighting from the elevator, after the same had stopped in order to permit her so to do, and after she had stepped from the same with her right foot to the floor of the building, defendant's employee in charge of the operation of the elevator negligently and suddenly closed the door, in consequence of which plaintiff's left foot was caught between the door and one of the sides of the elevator, and she was thereby caused to fall against the floor and wall of the building and to sustain bodily injuries, for which she sought a recovery.

According to further allegations in the petition, as the result of her fall, plaintiff suffered a severe nervous shock and sustained bruises and wounds in both hips, both arms, and the muscles of her back were so torn and mashed as to cause pains in her back, soreness in her abdomen, and inflammation and soreness in the sciatic nerve; and she has sustained great physical and mental suffering as a result of her injuries, which she averred are permanent; and she was forced to incur the following expenses for treatment for her injuries, to wit, $657 for services of a physician, $296 for hospital services, and $35 for medicines. The sum of $25,000 was claimed for said expenses, physical and mental suffering, loss of time from work, and permanent impairment of ability to labor.

While the alleged result of injury to the sciatic nerve, and the further allegation that plaintiff was forced to undergo two operations for lacerations of the cervix and perineum, may be somewhat indefinite, yet in view of other allegations specifically decribing the injuries, there was no reversible error in overruling appellant's special exceptions thereto, on the ground that they were too vague and indefinite.

We do not believe there was any reversible error in the action of the court in overruling defendant's special exception to the plaintiff's claim for medicines, hospital bills, and treatment by a physician, on the ground that those expenses were not itemized, although the rule would be different in a suit instituted against the plaintiff for accounts for such items. M., K. & T. Ry. Co. v. Simmons, 12 Tex. Civ. App. 500, 33 S. W. 1096; St. L. S. W. Ry. Co. v. Stonecypher, 25 Tex. Civ. App. 569, 63 S. W. 946.

Nor was there error in overruling another special exception to the allegation in plaintiff's petition "that because of said injuries her ability to work and earn a livelihood has been permanently impaired and reduced"; the ground for the exception being that those allegations were too general and indefinite to show a proper measure of damages, and were mere conclusions of the pleader without allegation of sufficient facts upon which to base such conclusions. As noted already, the kind and character of the injuries alleged to have been sustained were minutely and specifically set out in the petition, and the proof of such injuries would furnish sufficient data from which the jury could properly estimate the measure of damages. I. & G. N. Ry. Co. v. Cruseturner, 44 Tex. Civ. App. 181, 98 S. W. 423; G. C. & S. F. Ry. Co. v. Scripture (Tex. Civ. App.) 210 S. W. 269; G. H. & S. A. Ry. Co. v. Roth, 37 Tex. Civ. App. 610, 84 S. W. 1112; El Paso S. W. Ry. Co. v. Barrett, 46 Tex. Civ. App. 14, 101 S. W. 1025, 121 S. W. 570.

In plaintiff's pleadings, negligence in three separate particulars was alleged as the proximate cause of her injuries and as the basis for her recovery. Those issues were submitted to the jury in the court's charge as follows:

"Issue No. 1. While the plaintiff was leaving the elevator of the defendant do you find from the evidence in this case that the defendant, through its agent and employee, suddenly moved the elevator up?"

"Issue No. 4. While the plaintiff was leaving said elevator do you find from the evidence in this case that the employee or agent of the defendant suddenly closed the door to said elevator in such a way as that plaintiff's left foot was caught therein, as alleged in plaintiff's petition?"

"Issue No. 7. Did the defendant on the date of the alleged injuries have said elevator equipped so that said elevator could be moved upward or downward before the door to the same was fully closed?"

The jury returned findings in favor of plaintiff on all of those issues, and in answer to other issues further found that each of such acts of defendant was negligence, which was the proximate cause of plaintiff's injuries.

Before the charge was given to the jury, appellant objected to the submission of all of those issues in the form submitted, including the issues of negligence and of proximate cause for plaintiff's injuries, on the ground that they were leading, suggestive, and on the weight of the evidence. The objections to issues 1 and 4, and the respective issues of negligence in connection therewith, as given, were on the ground that the same assumed that the plaintiff was leaving the elevator when the alleged accident occurred, and that while so doing the employee suddenly started the same, and on the further ground that they were multifarious, in that they included the double inquiry: (1) Whether or not the elevator was moved at all; and (2) whether it was moved suddenly. Assignments of error embodying all of those exceptions to the charge are overruled.

The testimony of plaintiff that the accident occurred while she was leaving the elevator was not contradicted, and, although it came from the plaintiff herself, it was corroborated by the testimony, in a measure, of other disinterested witnesses on the same floor of the building who rendered assistance to plaintiff for her injuries immediately after the accident. Furthermore, we do not believe that those issues were subject to the objection as being multifarious, in that there was an absence of any testimony to show that the elevator was not moved at all and the gist of plaintiff's contention relative to the moving of the elevator being its sudden movement. Furthermore, the objection to the submission of those issues were in general terms without pointing out to the trial judge in what particulars the instructions were leading and on...