Hyde v. Marks, No. 14036.

CourtCourt of Appeals of Texas
Writing for the CourtSpeer
Citation138 S.W.2d 619
PartiesHYDE v. MARKS.
Docket NumberNo. 14036.
Decision Date23 February 1940
138 S.W.2d 619
HYDE
v.
MARKS.
No. 14036.
Court of Civil Appeals of Texas. Fort Worth.
February 23, 1940.
Rehearing Denied April 5, 1940.

Page 620

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Milton Marks against G. W. Hyde for injuries sustained in an automobile collision. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Todd, Crowley & Thompson, of Fort Worth, and Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for appellant.

Penn Jackson, of Cleburne, and Martin, Moore & Brewster, of Fort Worth, for appellee.

SPEER, Justice.


This is a suit for damages, growing out of a collision between a large passenger bus and a Pontiac automobile, alleged to have occurred on Hemphill Street, in the City of Fort Worth, early in the evening of January 1st, 1938.

Plaintiff Milton Marks instituted the suit against defendant G. W. Hyde, as owner of the bus. The parties will carry the same designation here as in the trial court.

Among other things, the pleadings of plaintiff disclose that on the date mentioned, he was driving south on Hemphill Street, en route to Venus, in Johnson County;

Page 621

that Hemphill Street is the main thoroughfare leading from Fort Worth to Venus; that because of the negligence of the driver of defendant's bus, the two vehicles collided, proximately resulting in serious bodily injuries to him, for which he sought damages.

Defendant answered by general demurrer, general denial and specially by allegations of negligence on the plaintiff's part, charged to have been the proximate cause of the collision and the resultant injuries.

It is unnecessary for us to relate the various acts of negligence charged by the respective parties against the other. There is no complaint by either party that the pleadings were not sufficient to support evidence raising the issues that were submitted. Many witnesses testified concerning the movements of the vehicles involved, and their testimony is highly conflicting, thus raising issuable facts for jury consideration.

In his charge to the jury, the court defined "negligence", "proximate cause", "new and independent cause", "proper lookout" and "unavoidable accident". No complaint is made of either, except as to the latter. Error is assigned to that explanation, and it will be discussed by us later in this opinion.

The verdict was favorable to plaintiff in every particular.

The bus driver was found to be guilty of negligence in many respects, each being found to be a proximate cause of plaintiff's injuries. Plaintiff was acquitted of negligence on each issue submitted. The jury found that plaintiff's damages for mental pain and suffering since the accident and in the future, as well as diminished earning capacity, was $3,000. In answer to other issues, the jury awarded damages to plaintiff as follows: $520 for the Pontiac car; $250 for medical treatment; $219 for hospitalization; and $105 for nurse hire.

Because of the numerous grounds of negligence charged by both parties and the great volume of testimony offered, the court submitted 77 special issues. The amounts awarded by the jury aggregate $4,094, for which sum the judgment was entered. Defendant moved for a new trial and assigned in his motion 237 alleged reasons why it should be granted. The motion was overruled, and defendant has appealed.

Twenty-eight assignments of error are brought forward by defendant in his brief and these are concisely presented under four propositions or points relied upon for a reversal of the judgment entered.

The first proposition is based upon assignments of error one to five, both inclusive. These assignments are leveled at that part of the court's charge given in connection with the inquiry as to the amount plaintiff should recover for mental pain and suffering since the accident, as well also any amount that the jury should find that he probably would suffer in the future. The particular part of the charge complained of in this connection reads as follows: "If you find and believe from a preponderance of the evidence that plaintiff's earning capacity has been diminished, or will be diminished in the future, by reason of his injuries, if any, you may take such facts, if any, into consideration." It is contended by defendant that there was no testimony offered which tended to show that plaintiff's earning capacity had been diminished. It is asserted that the only evidence offered with reference to his ability to earn money consisted of his own statements, to the effect that he had been earning on an average of $200 to $250 a month for the two years immediately preceding the date of his injuries; that his work consisted of selling oil products on commission but that out of his gross earnings he had to furnish his own capital and equipment, hire and pay for a helper and pay all losses sustained by reason of bad accounts. It is insisted by defendant that since there was no testimony offered to show what these deductions were, there was no basis shown from which it could be determined what plaintiff's earnings were and consequently the jury could not find to what extent they had been diminished.

We do not construe the testimony of plaintiff in regard to his earnings prior to his injuries as does the defendant in his briefs. The plaintiff was questioned by his counsel as to the nature of the business in which he had been engaged for about two years prior to the accident. He said he had been selling oil products in the Anson, Texas, territory, on commission. He described the nature of the work and was asked: Question: "How much money were you making a month on an average prior to the time of this collision?" An objection to the inquiry was made because it embraced his own earnings, as well as returns upon his capital invested, which

Page 622

plaintiff had said was about $1,500. His counsel changed the question to this form: Question: "Are you familiar with the value of services of the kind that you were rendering at that time, in Anson and in that territory?" Answer: "Yes, sir." Question: "Did you know any other men that were engaged in the same kind of work, in that locality out there, for oil companies?" Answer: "Yes, sir." Question: "And were you well acquainted with the value of that kind of services?" Answer: "Yes, sir." * * * Question: "Well, I am talking about a man hired out to other people, doing the same kind of work that you were doing, soliciting and delivering. What were the services of that nature worth out there at the time you got hurt?" Answer: "Around two to two hundred and fifty dollars (a month)."

On cross-examination, plaintiff testified that he could not name any person in that territory who had been employed upon a salary to do the particular kind of work that had been done by him. In response to further questions, he said that $200 to $250 a month was an average, like he had told his counsel; that that amount was what he averaged. Defendant then moved to strike plaintiff's former testimony because it was not the proper test; the motion was overruled and exception taken. Plaintiff further testified on cross-examination that he had to deduct from his gross income his expenses for help when hired, expense of operating his truck, its wear and tear, telephone calls and bad debts incurred.

He also said that he had hired a helper and paid him $12 a week, but did not state when, with reference to the injury, such a helper had been employed. His wife testified that he was in good health prior to the injury and had done all of his work. This testimony was susceptible to more than one construction, and the jury would have been justified in finding that if any helper was hired, it was after plaintiff was injured.

We have searched the record and do not find that plaintiff ever testified on direct examination what amount he had earned before he received the injuries, but, as shown, he qualified as an expert on the reasonable amount of wages necessary to employ a person to do the work performed by him in that locality. True, the cross-examiner implied that he had testified as to his own earnings, and the witness then testified to items of expense necessarily deductible. We do not construe this testimony as being in conflict with his positive testimony as to reasonable wages for one performing that work. But, to give it the interpretation applied by defendant, it produced only a conflict in his statements. This would...

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12 practice notes
  • Trotter v. United States, Civ. No. 2678.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • February 9, 1951
    ...v. Gloria, 140 Tex. 566, 169 S.W.2d 710; El Paso Electric Company v. Gregston, Tex.Civ.App., 170 S.W.2d 515; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619; Texas & New Orleans Railway Company v. Skeen, Tex.Civ.App., 149 S.W.2d 1060; Marsh v. Williams, Tex.Civ.App., 154 S.W.2d 201; Triangle Ca......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...in any way interested in the outcome of the Smithwick case because of his former employer's settlement with the Doves. Cf. Hyde v. Marks, 138 S.W.2d 619 (Tex.Civ.App.--Fort Worth 1940, writ dism'd jdgm't correct). Further, were we to uphold the trial court's admitting the Dove-Scurlock agre......
  • Anders v. Newsom, No. 2706.
    • United States
    • Court of Appeals of Texas
    • January 21, 1949
    ...maintained in Newsom's name alone for the benefit of Page 424 both. 46 C.J.S., Insurance, § 1209, p. 172; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619, 625; Hudson Underwriters Agency of Franklin Fire Ins. Co. v. Ablon, Tex.Civ. App., 203 S.W.2d 584, 585; San Antonio & A. P. R. Co. v. D. M. ......
  • Martin v. Weaver, No. 4143.
    • United States
    • Court of Appeals of Texas
    • November 19, 1941
    ...515, 109 S.W. 918; Red Arrow Freight Lines v. Gravis, Tex.Civ.App., 84 S.W.2d 540, and authorities cited; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619. The assignments are In view of the fact that this case may be tried again it is appropriate that we pass upon the assignments relating to th......
  • Request a trial to view additional results
12 cases
  • Trotter v. United States, Civ. No. 2678.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • February 9, 1951
    ...v. Gloria, 140 Tex. 566, 169 S.W.2d 710; El Paso Electric Company v. Gregston, Tex.Civ.App., 170 S.W.2d 515; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619; Texas & New Orleans Railway Company v. Skeen, Tex.Civ.App., 149 S.W.2d 1060; Marsh v. Williams, Tex.Civ.App., 154 S.W.2d 201; Triangle Ca......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...in any way interested in the outcome of the Smithwick case because of his former employer's settlement with the Doves. Cf. Hyde v. Marks, 138 S.W.2d 619 (Tex.Civ.App.--Fort Worth 1940, writ dism'd jdgm't correct). Further, were we to uphold the trial court's admitting the Dove-Scurlock agre......
  • Anders v. Newsom, No. 2706.
    • United States
    • Court of Appeals of Texas
    • January 21, 1949
    ...maintained in Newsom's name alone for the benefit of Page 424 both. 46 C.J.S., Insurance, § 1209, p. 172; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619, 625; Hudson Underwriters Agency of Franklin Fire Ins. Co. v. Ablon, Tex.Civ. App., 203 S.W.2d 584, 585; San Antonio & A. P. R. Co. v. D. M. ......
  • Martin v. Weaver, No. 4143.
    • United States
    • Court of Appeals of Texas
    • November 19, 1941
    ...515, 109 S.W. 918; Red Arrow Freight Lines v. Gravis, Tex.Civ.App., 84 S.W.2d 540, and authorities cited; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619. The assignments are In view of the fact that this case may be tried again it is appropriate that we pass upon the assignments relating to th......
  • Request a trial to view additional results

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