Garcia v. Texas Indemnity Ins. Co.
| Decision Date | 16 October 1947 |
| Docket Number | No. 11875.,11875. |
| Citation | 205 S.W.2d 803 |
| Parties | GARCIA et al. v. TEXAS INDEMNITY INS. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Wilmer B. Hunt, Judge.
Suit between Dolores Garcia and others and the Texas Indemnity Insurance Company to set aside an award of the Industrial Accident Board in a proceeding for compensation for the death of Matthew Garcia, deceased. From a judgment in favor of the Texas Indemnity Insurance Company, Dolores Garcia and others appeal.
Affirmed.
J. A. Copeland and C. F. Tucker, both of Houston, for appellant.
James W. Mehaffy, Bernard J. Mackin, and Baker, Botts, Andrews & Walne, all of Houston, for appellee.
This is a workmen's compensation case. The appellee is the insurance carrier; the appellants are the widow and children of the employee, Matthew Garcia; said employee died as a result of injuries received on October 17, 1942, on his employer's premises in Houston, Texas. The employer was Montgomery Ward & Co., Inc.
The trial was to a jury. At the conclusion of appellants' evidence, and again at the conclusion of all the evidence, the appellee moved for an instructed verdict, which motions were refused. In response to special issues, the jury found in favor of the appellants. The appellants thereupon moved for judgment on the verdict, and appellee moved for judgment non obstante veredicto. The court refused appellants', and granted appellee's motion, and rendered judgment for appellee. The appellants predicate their appeal on 30 points. Such points cover more than seven pages of their brief. But they are subject to being summarized as follows:
1. Appellee's motion for judgment non obstante veredicto was insufficient in law to invoke the court's jurisdiction under the provisions of Rule 301, Texas Rules of Civil Procedure, because appellee's motions for instructed verdict did not comply with the mandatory provisions of Rule 268, T.R.C.P., in that they did not state any specific grounds for a directed verdict. Hence the court erred in granting the motion for judgment non obstante veredicto.
2. The court erred in granting the motion for judgment non obstante veredicto, because the evidence raised the issue of whether the death of Matthew Garcia was accidental injury sustained in the course of his employment.
3. The court erred in excluding the proffered expert testimony of appellants' witness, A. J. Ellis, the mortician, as to his opinion whether the wounds found by him on the head and body were such as to produce his death.
4. The court erred in excluding the proffered testimony of appellants' witnesses, Rosa Mayorga, Ernest Villareal and Rachael Garcia, as to the res gestæ statements made to them on the night of Garcia's death by appellee's witness, L. H. Carr.
5. The court erred in excluding the proffered testimony of appellant, Mrs. Dolores Garcia, as to statements made to her the night before the accident by the deceased.
OpinionWe overrule appellants' first point.
Rule 268 provides: "A motion for directed verdict shall state the specified grounds therefor." Appellee's motion for directed verdict, made at the conclusion of appellants' evidence, assigned as grounds therefor that appellants had failed: "to introduce any evidence indicating that the said Matthew Garcia, deceased, died as a result of an accidental injury within the meaning of the Workmen's Compensation Act of the State of Texas." The motion for directed verdict, made at the conclusion of all the evidence, failed to specify grounds therefor. The court refused said motions, and appellee has not assigned said failure as error. So the question is not formally before us whether the court erred in refusing to direct a verdict for appellee. But for the purpose of passing on appellants' first point, we will assume that appellee's motions for directed verdicts were fatally defective for failure to specify the grounds for a verdict to have been directed.
Boiled down, appellants' first point comes to this. That, by force of Rule 301, the court in this case was without jurisdiction to grant appellee's motion for a judgment non obstante veredicto, hence the granting of said motion was reversible error. Rule 301, so far as here material, reads: * * *" (Emphasis supplied.)
Rule 301 was formerly Art. 2211. Before it was amended to permit the granting of a motion for judgment non obstante veredicto, the court was bound to render the judgment to conform to the verdict. As a consequence of the rule, as it now reads, jurisdiction was conferred on the court to render a judgment non obstante veredicto. But, since the parties to a suit have the constitutional right to trial by jury, jurisdiction could not be conferred upon the court to disregard the verdict of the jury if in fact a jury question had been presented, and the rule was so framed. The Rule does not make it a condition precedent to the exercise of such jurisdiction that a motion for a directed verdict must have been seasonably filed and urged. And if a motion for a verdict is defective to the extent that it would have constituted error on the part of the court, had same been granted, nonetheless the court has ample jurisdiction under the rule to grant a motion for judgment non obstante veredicto, if by so doing the constitutional right to trial by jury is not invaded thereby. We find appellants' contention that the court was without jurisdiction to consider the motion for judgment non obstante veredicto without merit based upon appellants' contention that the motions for directed verdict were fatally defective. This brings us to appellants' point 2, which presents that the court erred in granting the motion, because there was evidence presented which raised the issue of whether the death of Matthew Garcia was an accidental injury sustained in the course of his employment.
The cause was submitted upon four special issues, which, as answered by the jury, found:
1. That on or about October 17, 1942, Matthew Garcia received an injury in the course of his employment. In connection with said issue, the jury were instructed that the term "injury" as used in the issue meant "damage or harm to the physical structure of the body and such diseases as naturally result therefrom." And, further in that connection they were instructed that "in the course of his employment" meant an injury of such kind and character as had to do with and originates in the business of the employer and is brought about by a risk which is incidental and arises out of the work the employee has to do in fulfilling his contract for services, and to which the employee would not be subjected but for his employment.
2. That the injury was accidental.
3. That the injury was a producing cause of his death. In connection with said issue the jury was instructed that "producing cause" meant a cause in which in a natural and continuous sequence would produce death and without which death would not have occurred.
4. That the death of Matthew Garcia was not due to natural causes.
No objections were made to the special issue as submitted, and the sole question under this point is whether there was sufficient evidence to sustain the jury's findings. In considering whether there was sufficient evidence to support the finding, or more accurately to raise the fact issue that the death of Matthew Garcia was an accidental injury sustained in the course of his employment, the same must be considered in the light most favorable to appellants. See Johnson v. Moody, Tex.Civ.App., 104 S.W.2d 583, 585. As so considered, the evidence was to the following effect:
Matthew Garcia was a man of 37 years of age, and appeared to be in good health, and had passed various physical examinations as being in good health. He...
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Garcia v. Texas Indemnity Ins. Co.
...verdict and granted respondent's motion for judgment non obstante veredicto. That judgment was affirmed by the court of civil appeals. 205 S.W.2d 803. Matthew Garcia, husband and father of petitioners, was a dock hand at a store, in Houston. His principal work was to load and unload trucks.......