Houston E. & W. T. Ry. Co. v. Chambers

• Decision Date: 14 May 1926
• Docket Number: (No. 1454.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 284 S.W. 1063
• Parties: HOUSTON E. & W. T. RY. CO. v. CHAMBERS.
• Court: Texas Court of Appeals

Page 1063

284 S.W. 1063

HOUSTON E. & W. T. RY. CO. v. CHAMBERS.

(No. 1454.)^*

Court of Civil Appeals of Texas. Beaumont.

May 14, 1926.

Rehearing Denied May 26, 1926.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Suit for injunction by the Houston East & West Texas Railway Company against S. Chambers. From order denying injunction, plaintiff appeals. Affirmed.

See, also, 279 S. W. 290.

Garrison & Watson and Baker, Botts, Parker & Garwood, all of Houston, for appellant.

Collins & Collins, of Lufkin, for appellee.

HIGHTOWER, C. J.

The appellant, Houston East & West Texas Railway Company, prosecutes this appeal from an order of Hon. C. A. Hodges, judge of the Second judicial district of Texas, declining and refusing to grant to appellants temporary writ of injunction restraining and enjoining the appellee, S. Chambers, and his attorneys from collecting or attempting to collect, by levy of execution upon appellant's property or otherwise, a certain judgment that was recovered by Chambers against appellant in the district court of Angelina county, and which has become, in all respects, a final judgment.

The present controversy between the parties is based upon the following facts:

On June 15, 1924, the appellee, Chambers, was a switchman, in the employ of appellant in the town of Lufkin, in Angelina county, and on that day sustained personal injuries; and thereafter filed suit in the district court of Angelina county against appellant to recover damages in consequence of such injuries, alleging that they were caused by the negligence of appellant. Appellant, in that suit, answered by general demurrer and general denial, and pleaded contributory negligence and assumed risk on the part of Chambers. That cause proceeded to trial before a special trial judge without a jury, and resulted in a judgment in favor of Chambers, the plaintiff in that cause, for $31,000. After its motion for new trial in that cause was overruled, appellant appealed to this court, challenging the judgment of the trial court by a number of assignments of error, all of which were overruled by this court with the exception of the assignment which challenged the judgment on the ground that it was excessive, and that assignment this court sustained. This court held that the judgment was excessive by $11,000, and entered its order reversing and remanding that cause, unless the appellee would enter a remittitur of $11,000, in which event this court would affirm the judgment in his favor for $20,000. Appellee did, thereafter, in due time, enter a remittitur of $11,000 and this court affirmed the judgment in that cause in his favor for $20,000. The opinion of this court will be found reported in 279 S. W. at page 290. After the judgment of this court affirming the judgment in that cause, the appellant railway company applied for a writ of error to our Supreme Court, but the application was dismissed or denied by that court for want of jurisdiction.

On April 2, 1926, the appellant here, Houston East & West Texas Railway Company, filed an original suit or bill in equity against the appellee here, Chambers, in the district court of Angelina county to have set aside and annulled the judgment which appellee had obtained against appellant above mentioned, on the ground that that judgment was procured by fraud and perjury on the part of appellee, and that the court, in the exercise of its equitable powers, ought to cancel and set that judgment aside, and such relief was prayed for; and appellant further prayed for a temporary writ of injunction to restrain Chambers and his attorneys from collecting or attempting to collect the aforesaid judgment during the pendency of the suit to cancel and annul it. Appellant presented its petition and prayer for the temporary writ of injunction to Judge Hodges on the same day that the suit was filed, and Judge Hodges refused and declined to grant the temporary writ, and on the next day appellant, by supplemental petition presented to Judge Hodges, requested him to set the petition for the temporary writ of injunction down for hearing on the 5th or 6th day of April, 1926, in order to hear and determine whether appellant was entitled to the temporary writ as prayed, and this request was refused by Judge Hodges, and from both of these orders appellant has prosecuted this appeal.

In the present suit between the parties, in which appellant is seeking to have set aside and annulled the judgment in the former suit, appellant alleges, in substance, as the only ground for the equitable relief sought, that Chambers testified, while a witness on the stand, that the injuries for which he was seeking recovery against appellant were serious and permanent, and especially that the main injury claimed by him, that is the injury to his right arm, was serious and permanent, and that the use of his arm, in consequence of the injury, had been practically destroyed, whereas, in truth and in fact, so appellant alleges, the injuries sustained by Chambers were not serious and permanent, and the injuries to his right arm were so slight that he had practically recovered from them, and that his arm was practically normal. In this connection, appellant, in its petition to annul the former judgment, has set out at great length the testimony of Chambers on the former trial, showing the materiality of same as to the extent of his injuries, and especially the injury to his right arm, and this statement in the petition shows that Chambers, on the former trial, did testify, in substance, that the injuries sustained to his right arm had rendered the same practically useless, and that he could perform no character of manual labor with that arm. And then appellant proceeds, by allegations in the petition, to annul the former judgment, as follows:

"Plaintiff alleges that neither the doctors in Lufkin who had examined him and had been treating him (meaning Chambers) nor his wife testified in his suit; that he relied as to the extent of his injuries solely upon his own testimony.

"Plaintiff alleges that during the trial of said case the said S. Chambers was examined by two physicians for the railway company, to wit, Dr. Morrison of Houston, and Dr. Cannon of Lufkin; that each of these doctors testified that the injuries to his right arm would not exceed 50 per cent. of its normal condition, and that if he would try to use his arm that they were of the opinion, or at least Dr. Morrison was of the opinion, that he, Chambers, would eventually recover the entire normal use of his arm; that at the time the said S. Chambers testified as to the condition of his arm and his inability to use the same, as well as to the extent of his injuries, he knew that said testimony was false and untrue; that the physicians in making their reports relied largely in giving their opinion as to the extent of his injuries upon statements made by the said S. Chambers as to the use he could make of his arm and as to the amount of pain he experienced in using his arm; that the said S. Chambers knew at the time of making said statements that the same were false and untrue, and that the same were made solely for the purpose of increasing the amount of damages which might be awarded him by a court or jury; that the railway company was unable to disprove the facts as testified to by the said S. Chambers as to the use he could make of his right arm and the pain he experienced in using same, for the reason that said facts were known only to the said Chambers; that the excessive and outrageous judgment of the trial court and the affirmance of said judgment by the Court of Civil Appeals was predicated upon the testimony of the said S. Chambers as to the extent of his injuries.

"Plaintiff alleges that it is reliably informed by creditable witnesses that a short time prior to the trial of said case the said S. Chambers was examined by a reputable physician in Lufkin; that said doctor made a careful examination of the plaintiff, especially with reference to his testimony as to his inability to use the right arm; that said examination was made not more than two weeks before the trial of said case; that the doctor put the said Chambers through a very careful test as to the use of his right arm for the purpose of determining definitely the extent of his injuries; that during said examination it was found that the said doctor could move the arm of Chambers in any direction in which he wanted to move it; that he could raise the arm straight up from his head, work the elbow joint and, in short, made a very thorough examination and advised Chambers and his attorney that Chambers' arm was not injured except for the scars, that all muscles, tendons, bones and other parts of the arm were normal and that the use of it was normal; that there was no injury except as to the appearance of the arm caused from the scars thereon; that these facts were made known to the said Chambers and were known to him at the time he testified that he could not use his arm and could not raise it higher than an angle of 45 degrees from his body, and that in so doing he suffered pain, and that he could not use his right arm for any purpose as hereinbefore alleged; that the doctor who had examined him a short time prior to the time the case was tried was not called upon to testify on behalf of the said Chambers for the reason that he had informed the said Chambers that the injuries to his right arm were not permanent and that he had entirely recovered.

"Plaintiff further alleges that since the trial of said case the said S. Chambers has been using his right arm, working in a store, selling merchandise; that he is able to do so and does crank his car with his right arm; that he has also been playing billiards or pool, using the cue in his right hand; and plaintiff is informed by reliable witnesses that they have seen the said Chambers using his right arm, apparently without difficulty, cranking his...