Hodges v. Nix

• Decision Date: 15 December 1949
• Docket Number: No. 12110,12110
• Citation: 225 S.W.2d 576
• Parties: HODGES et al. v. NIX.
• Court: Texas Court of Appeals

Page 576

225 S.W.2d 576

HODGES et al. v. NIX.

No. 12110.

Court of Civil Appeals of Texas, Galveston.

Dec. 15, 1949.

Rehearing Denied Jan. 5, 1950.

Vinson, Elkins, Weems & Francis, Thos. B. Weatherly, and W. Eugene King, all of Houston, for appellants.

Fulbright, Crooker, Freeman & Bates, M. S. McCorquodale, Sam W. Cruse and William H. Vaughan, Jr., all of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellants, the heirs of Dewey Clint Hodges, deceased, to recover damages alleged to have been sustained as the result of the negligence of appellee, Russell Nix, in permitting the use of, and in the maintenance of the equipment of a radial saw located in a plant owned and operated by appellee in which Dewey Clint Hodges was engaged in making repairs at the time he sustained injuries which resulted in his death.

Appellee has filed in this court his motion to strike the statement of facts filed by appellants herein, and asking that the judgment of the trial court be affirmed under Rule 386, Texas Rules of Civil Procedure. Appellant's motion for new trial was overruled on April 4, 1949, and the transcript was duly filed within 60 days thereafter. This Court, on an original motion duly filed within the time allowed by Rule 386, granted an extension of time for filing the statement of facts in this Court until July 1, 1949. The statement of facts was not filed within this extended period, but this Court afterwards granted a second motion for extension of time and permitted the statement of facts to be filed on July 19, 1949.

Rule 386, Texas Rules of Civil Procedure, provides that an appellant shall file a transcript and statement of facts with the Clerk of the Court of Civil Appeals within 60 days after the rendition of the judgment or order overruling motion for new trial, and that by motion filed before, at, or within a reasonable time, not exceeding 15 days after the expiration of such 60 days period, showing good cause to have existed within such 60 days period why such transcript and statement of facts could not be filed, the Court of Civil Appeals may permit the same to be thereafter filed under such terms as it shall prescribe.

In the case of Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585, 586, the Supreme Court of this State, in construing Article 1839, which was the source of and was repealed by Rule 386, Texas Rules of Civil Procedure, in its opinion said: '* * * our construction is that the intent of the present statute is to clothe the Court of Civil Appeals with jurisdiction to grant extensions for filing transcripts and statements of fact on motions filed after the seventy-five-day period named in the statute, provided its jurisdiction over the question of extension has first been invoked by a motion filed within such seventy-five-day period. In this connection we call attention to the fact that the statute says: '* * * provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen (15) days, after the expiration of such sixty-day period * * * the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.' We interpret such language to mean that when a motion has been filed within the seventy-five-day period named in the statute, the Court of Civil Appeals thereafter has jurisdiction to control the situation, and may prescribe the terms under which the record may be filed in such court. Of course, the Court of Civil Appeals must not act arbitrarily and must only grant extensions for good cause.'

In a later opinion, the Supreme Court in the case of Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676, 678, said: 'If possible, the court should give appellant an opportunity to establish his right to appeal in order that the case may be disposed of on its merits. The object of the new rules is 'to obtain a just, fair, equitable and impartial adjudication of the rights of litigants', Rule 1, and where this can be done without doing violence to the rules or injustice to the rights of the parties, it is the duty of the court to do so.' The court quoted with approval from the opinion of the court in the case of Shanks v. Carroll, 50 Tex. 17, in which it was said 'A failure to observe and comply with the rules prescribed by this court regulating the manner of bringing cases before it, is a valid and sufficient ground, in the discretion of the court, for the dismissal of an appeal or writ of error, unless good cause is shown why this is not done. It is not to be inferred, however, that the court must in all cases sustain motions to dismiss upon a mere failure to comply with the strict letter of this rule; but the court, in acting on such motion, may unquestionably 'give such direction to the case as will cause the least inconvenience or damage from such failure, as far as practicable. '' Citing authorities.

In the instant case the statement of facts was not filed in this Court before July 1, 1949, nor was an application for a further extension of time filed within such extended period.

On July 15, 1949, fifteen days after the expiration of the extended period, appellants filed their second motion for an extension of time for the filing of the statement of facts and alleged as grounds therefor that their failure to file the statement of facts within the extended period was due wholly to the inability of the court reporter to prepare the statement of facts because of illness and the preparation of other statements of facts ordered before the statement of facts in this case. This fact is not disputed and there is no showing in the record that the filing of the statement of facts would adversely affect the rights of appellee or cause him inconvenience or damage.

Under these facts, appellee's motion to strike the statement of facts is overruled.

It is undisputed in the record that at the time the deceased met his death, he was employed as a carpenter foreman for an independent contractor employed to repair the roof of a lumber and mill working plant owned and operated by appellee. He met his death while using a power saw located on the premises.

The jury found, in substance, in answer to special issues submitted, that the power saw operated by the deceased was not a reasonably safe machine and that this fact was known to him; that both Clyde Tawater, appellee's shipping clerk, and Phillip Gaston, his bookkeeper, had permitted the deceased to use the saw, but that such action on their part was not negligence, and that neither of them knew that the saw was not a reasonably safe machine.

They found that the saw was an inherently dangerous instrumentality and that this fact was known to the deceased, but that it was not negligence for him to use it. They found that appellee knew that the saw was inherently dangerous when used for ripping without an anti-kickback guard and that it was negligence on his part not to prevent its use by deceased and that such negligence was a proximate cause of appellants' injuries and damages. They found that the workshop and regular employees of appellee were available to rip the boards for the repair of said building and that deceased's employer was guilty of negligence in not instructing his employees that they were not to use the saw. The jury found that while the deceased did not fully understand the safe and proper method of operating the saw his failure to inquire relative thereto was not negligence.

All issues of contributory negligence on the part of the deceased were answered in favor of the appellants.

On appellee's motion the trial court entered judgment in his favor.

Testimony was introduced by appellee to the effect that the power saw in question was principally used by appellee's employees for what was known as 'cut off work' in filling orders for lumber and that it was not equipped with an antikickback guard because a saw of this kind equipped with an anti-kickback guard cannot be used for cutoff work. They testified that the use of this saw was forbidden to all employees in the plant except Tawater and two Negro employees.

Appellee testified that he had issued positive instructions to his manager to never let anyone else use this saw and Otis Hodges testified that he and his men had been instructed to not use it.

The jury found that appellee's manager did so instruct Otis Hodges that he and his employees were not to use the power driven equipment, including the power saw in question.

Appellants rely largely upon their points of appeal in which they assign error in the action of the court in not rendering judgment in their favor based upon the answers of the jury to the issues submitted which they contend were fully supported by both pleadings and evidence.

Appellee contends under his first and second counter-points of error that since Special Issues 14 and 15 were the only issues of negligence found against him, and that since neither of these issues was raised by the pleadings, judgment in his favor must be affirmed.

'Special Issue No. 14 reads as follows:

'Do you find from a preponderance of the evidence that the failure of the defendant to prevent the deceased, Dewey Clint Hodges, from using the radial saw without an anti-kickback guard for ripping was negligence as that term has been herein defined?

'Answer ...