Graves v. Poe

• Decision Date: 23 June 1938
• Docket Number: No. 3686.,3686.
• Citation: 118 S.W.2d 969
• Parties: GRAVES v. POE et al.
• Court: Texas Court of Appeals

Page 969

118 S.W.2d 969

GRAVES v. POE et al.

No. 3686.

Court of Civil Appeals of Texas. El Paso.

June 23, 1938.

Rehearing Denied July 7, 1938.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by Charles E. Graves against A. B. Poe and others, doing business as the A. B. Poe Motor Company, for injuries sustained in defendants' place of business. From a judgment for less than the amount demanded, plaintiff appeals.

Reversed and remanded.

Harrison, Scott & Rasberry, of El Paso, for appellant.

Jones, Hardie, Grambling & Howell, of El Paso, for appellees.

WALTHALL, Justice.

The statement of the nature and result of the suit as in appellant's brief having been adopted by appellees, we adopt it as our own and state it here.

Appellant, Charles E. Graves, filed this suit against A. B. Poe Motor Company, a partnership, consisting of A. B. Poe, Alton Poe and Louise Poe Shelton, doing business under the name of the A. B. Poe Motor Company, seeking to recover damages of $7,500.00 for personal injuries, because of negligence, the basis of such negligence being that the employees of the appellees spilled water upon the floor of the business house operated by such partnership at such portion thereof where the public was invited to transact business, and that one of the employees, namely, Jack Watson, acting in the scope of his authority, slipped in the water, fell, and in doing so struck appellant with a muffler tail pipe, fracturing his jaw and causing other injuries. Appellant was employed by the Car Parts Depot on the date of the injury. The Texas Employers Insurance Association, because of the obligation of a workman's compensation insurance policy issued to the Car Parts Depot, paid the hospital and doctor's bills incurred by the appellant and appellant requested that judgment be entered for the Association to the extent of such payment. Appellees answered that Jack Watson and appellant were scuffling with a muffler tail pipe, for which reason Jack Watson was not acting in the scope of his authority, and further alleged that appellant was guilty of contributory negligence. The jury found for appellant and allowed $200.00 as damages. Appellant filed a motion for new trial which was overruled and he thereafter perfected this appeal.

Opinion.

The jury, in response to special issues submitted, found: There was water on the floor at the place alleged by appellant at the time of the accident; such water was spilled on the floor by one of appellees' employees; the spilling of the water on the floor was negligence on the part of appellees, and which negligence was a proximate cause of appellant being struck by the tail pipe; the employees of appellees had permitted such water to remain on the floor at such place of business, which was negligence on the part of appellees and a proximate cause of appellant being struck by the tail pipe; shortly prior to the accident complained of appellant grabbed hold of the tail pipe then being carried by Jack Watson, which, under the circumstances, was not negligence on the part of appellant. The jury answered no to the question, do you find that Jack Watson, at the time appellant was injured, was not engaged in the performance of any service or duty for the appellees the striking of appellant with the tail pipe was not an unavoidable accident; appellant was injured from the blow complained of. Two hundred dollars was found as "the amount of damages sustained by appellant."

Appellant complains that the amount awarded him as damages for the losses sustained by him is unreasonable and inadequate. In this connection appellant points out from the record that the uncontroverted facts show that at the time of his injuries he was earning $225.00 each month; that in the accident his jaw was broken and was wired together from August 6th to October 23rd, during which time he could eat nothing but liquids taken through a...