Hoke v. Poser

• Decision Date: 25 November 1964
• Docket Number: No. A-10160,A-10160
• Citation: 384 S.W.2d 335
• Parties: Charles N. HOKE, Petitioner, v. Tom F. POSER, Respondent.
• Court: Texas Supreme Court

Page 335

384 S.W.2d 335

Charles N. HOKE, Petitioner, v. Tom F. POSER, Respondent.

No. A-10160.

Supreme Court of Texas.

Nov. 25, 1964.

O. Joseph Damiani, Houston, Long, Aronson & Coleman, Austin, for petitioner.

Tynes & Turk, Raymond L. McDermott, Houston, for respondent.

CULVER, Justice.

The respondent, Poser, filed the statement of facts in the Court of Civil Appeals on July 12, 1963, and the Court set the case for submission on February 6, 1964. Thereafter, on December 27, 1963, he filed his brief in the Court of Civil Appeals. At no time prior to the filing of the brief did Poser request an extension of time, nor has he ever alleged or attempted to show any good cause whatsoever for this substantial delay.

The petitioner, Hoke, asserts that the Court of Civil Appeals erred in overruling his motion to strike the brief and to dismiss the appeal. In support of this contention he cites Rules of Civil Procedure, 414 and 415. ¹ Impliedly Rule 414 standing alone would hardly vest in the Court of Civil Appeals any discretion to allow the filing of the appellant's brief more than thirty days after the filing of the statement of facts except upon a showing of good cause. But the two rules must be read together. Rule 415 authorizes the Court of Civil Appeals to dismiss the appeal for want of prosecution when appellant has failed to file his brief in the time prescribed in Rule 414, unless good cause to excuse that failure is shown and the opposing party has not suffered material injury thereby. However the last sentence in Rule 415, by its very clear and unambiguous terms, confers a broad discretion upon the Court to decline to dismiss the appeal in any event. The rule as written probably allows more discretion than the rule makers intended and probably should be amended. It permits quite a variance between the custom and practice of the different Courts of Civil Appeals. For instance, it appears that the Houston Court, due to the large volume of business and the delay thereby incurred in the setting of cases for submission, has, some years since adopted the practice of permitting the appellant, without motion, to file his brief within forty days prior to the date on which the case is set for submission, following which the appellee may file his brief at any time prior to 15 days before submission. While this practice may be very convenient for those lawyers in that Supreme Judicial District, nevertheless it may make for confusion and possibly penalize the unwary whose appeals might be transferred to other jurisdictions. It is to be remembered that a large percentage of cases appealed to the Houston Court are transferred to other courts for decision, where the appeal may be dismissed for failure to file within the time required in Rule 414. So pending any amendment, conformity to the rule as written is to be desired. At any rate the bench and bar are entitled to rely on the clear-cut wording of the rule and accordingly the Houston Court was not required, as a matter of law, to dismiss the appeal for want of prosecution. The point is overruled.

This suit grows out of an automobile collision which happened on July 6, 1960. Poser brought suit against Gene Mohr Chevrolet Company and its salesman, Charles Hoke, and recovered a judgment against Hoke in the sum of $467.50 for personal injuries and doctors and medical and hospital expenses, the company having been exonerated as a result of a jury verdict.

On appeal by Poser, the Court of Civil Appeals reversed the judgment rendered against Hoke, affirmed the judgment that Poser take nothing against the Chevrolet Company or its receiver, Phillips, and remanded the cause against Hoke for a new trial solely because of error in the Court's charge. ² On an examination of the record we are of the opinion that the attack on the Court's charge is not justified and the judgment of the Court of Civil Appeals should be reversed and that of the trial court affirmed.

As a result of the collision Poser claims that his head hit the top of the steering wheel, his left elbow hit the window and he felt a sharp pain in his back a little below the line of the seat belt which was fastened at the time. He was taken to the hospital in an ambulance and an orthopedic specialist examined him. Only his arm was X'rayed, though he complained to the doctor at the time that his back was giving him some pain. He was released from the hospital that day and went home. On July 11th he gave a statement in writing about the accident to the effect that his left arm was injured, his neck also hurt but as far as he knew he was not injured in any other way. He explained that he did not mention his back because the doctor said he could resume his work and had nothing to worry about. He testified that up to July 14th he worked in the office but did not do any lifting because of the pain he was suffering. On that day he went to the field station and helped one of his associates lift an instrument which weighed about 100 pounds. After it was set down he bent over to place some screws in the instrument and that was when he said 'I really got hurt,' and the pain got worse after July 14th.

Poser pleaded that as a result of this collision he sustained injury to his left elbow, a whiplash injury to his neck; suffered from headaches, and in all probaility sustained a protrusion of a lumbar disc. He further pleaded:

'* * * In the event it be shown that your plaintiff had any pre-existing condition, your plaintiff would respectfully show unto the Court and Jury that such pre-existing condition, if any, was neither painful nor disabling, but was aggravated and caused to flare up and become both painful and disabling as a result of the occurrence made the basis of this suit. * * *.'

The defendant, Hoke, pleaded in reply in part as follows:

'For further answer herein, this Defendant would further show the Court and Jury that the Plaintiff returned to his regular employment after the accident made the basis of his suit and thereafter, on the 14th day of July, 1960, he received an accidental injury and/or aggravation of his pre-existing back condition while on the job and while acting in the course and scope of his employment for Transcontinental Gas Pipe Line Corporation, which said accidental injury or aggravation of 14th July, 1960, was the cause of any and all medical expenses incurred by him on or after that date and was the direct and proximate cause of any subsequent operation, lost time, impairment of earning capacity, if any, and of all pain and suffering sustained by the Plaintiff from and after the 14th day of July, 1960.'

The only medical testimony in the case was given by Dr. Robert C. L. Robertson, a neurosurgeon called by Poser. Dr. Robertson first saw Poser on July 26th. He said that Poser told him that on July 6th he had been involved in an auto collision which caused pain in his back and that the pain continued until July 14th when he picked up the heavy instrument. Dr. Robertson found on examination that Poser had spondylolysis, a congenital condition which would cause pain in his lower back when certain motions occurred. He recommended surgery and performed that operation on August 2nd. The doctor also testified that probably the shaking up received in the collision was what necessitated the operation; that it was reasonably probable that the collision aggravated the condition of spondylolysis and that since Poser had his seat belt fastened the collision would cause a sudden flection of the low back and is of the type of movement that is likely to produce a rupture to the intervertebral disc. As a result of the collision Poser might have medical expense even to the point of further surgery for fusion. He also testified that it was reasonably probable that Poser's future medical expense as a result of the collision would be about $150.00 a year for the rest of his life and that it would be reasonable to consider his permanent partial disability as being in the order of twenty to twenty-five per cent.

On cross-examination the doctor testified that he could not be sure that the pain Poser suffered resulted from the occurrence on July 6th or July 14th, but in his opinion both the occurrences of July 6th and July 14th aggravated the condition and the automobile collision is the more logical thing that began this train of events. Under this state of the medical testimony the jury could have believed that the operation and the subsequent disability all proximately resulted from the collision of July 6th and it seems but speculation to believe that even if the lifting aggravated Poser's condition it resulted in subsequent aggravation for which the defendant would be liable. It is to be remembered that the testimony showed that...