Jarbet Co. v. Hengst

• Decision Date: 08 July 1953
• Docket Number: No. 10151,10151
• Citation: 260 S.W.2d 88
• Parties: JARBET CO., INC. v. HENGST.
• Court: Texas Court of Appeals

Page 88

260 S.W.2d 88

JARBET CO., INC. v. HENGST.

No. 10151.

Court of Civil Appeals of Texas, Austin.

July 8, 1953.

Rehearing Denied July 31, 1953.

Carl Wright Johnson, Edward P. Fahey, San Antonio, Massey, Hodges, Moore & Gates, Columbus, by Carl Wright Johnson, San Antonio, for appellant.

C. C. Jopling, La Grange, for appellee.

John Ben Shepperd, Atty. Gen., Rudy G. Rice, Asst. Atty. Gen., by V. F. Taylor, Asst. Atty. Gen., for intevenors, the State of Texas and its Highway Department.

ARCHER, Chief Justice.

This is a suit filed by plaintiff, Oliver C. Hengst, against The Jarbet Company, Inc., for damages for personal injuries alleged to have occurred on or about March 30, 1950, at a place on a public highway in Fayette County, where the road was under construction.

The defendant, The Jarbet Company, Inc., had the contract to build the road and the plaintiff was employed by the highway department of the State of Texas as an inspector on the job. The Texas State Highway Department intervened in the suit alleging an expenditure in compensation payments, medical and hospital expenses under the workmen's compensation act of the State of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., wherein the Texas State Highway Department is a self-insurer of its employees. The amount asked in the said intervention was $2,669.10.

The parties will be referred to as they were styled in the trial court; that is, as plaintiff, defendant and intervener.

The case was tried on the 4th and 5th of November, 1952, and the jury found that Joe Coleman, the driver of the defendant's maintainer involved in the accident, failed to keep a proper lookout, that the failure to keep a proper lookout in the operation of the said maintainer was a proximate cause of the accident, that plaintiff did not fail to keep such a lookout for the maintainer as an ordinary prudent person would have kept under the same or similar circumstances, and that the amount of plaintiff's damages was $5,000. The court rendered judgment on this verdict on November 21, 1952, awarding the plaintiff $5,000 in damages, and giving the Texas State Highway Department nothing on its intervention. On the 15th day of December, 1952, the court entered a reformed judgment wherein the Texas State Highway Department was awarded the sum of $425 out of the judgment which had been rendered in favor of the plaintiff so that the plaintiff's recovery would be $4,575, and the recovery for the intervener would be $425. The plaintiff, defendant, and intervener filed motions for new trial, and the defendant within due time filed an amended motion for new trial and the plaintiff filed an answer to said motions in which he sought certain affirmative relief. On December 15, 1952, the motions for new trial were all overruled.

The appeal is before this Court on fourteen points assigned as error and are to the effect that the evidence shows that the plaintiff was guilty of negligence proximately causing his injuries; that there is no proof that the employee of defendant was negligent in any manner; that it was error to admit in evidence the diagram, plaintiff's exhibit No. 1; in allowing the witness Hengst to be questioned with respect to the diagram; in permitting counsel for plaintiff in his closing argument to base a part thereof on the diagram; in admitting in evidence testimony of the plaintiff concerning normal operation of defendant's maintainer; in submitting Special Issue No. 6 by including in the instructions such language as would permit the jury to consider future pain in assessing damages, because there was no evidence to warrant such submission, and because the evidence was wholly insufficient to justify the inclusion of such element of damages; in permitting the jury to consider as part of its answer to Issue No. 6 the diminished capacity of plaintiff to earn money in the future, because there was no evidence, and because the evidence was insufficient to warrant the submission of such element of damages; in permitting counsel for plaintiff to comment on the failure of defendant to call a certain witness, who was equally available to plaintiff; in permitting the plaintiff to testify over objection as to his personal worries; in permitting counsel for plaintiff in his closing argument to refer to the personal worries of plaintiff as an element of damages; and finally, in permitting plaintiff's counsel, in closing argument, to appeal to prejudice by raising resentment against the defendant as a corporation.

The intervener, the State of Texas, assigned as error the failure of the court to deduct in the judgment the full amount of $2,669.10 in favor of intervener from the verdict, and in finding that intervener failed to make proof of its claim, and that the first money recovered by plaintiff should go to intervener, and a motion for new trial should have been granted.

The basis of the State's intervention on behalf of its Highway Department was predicated upon the provisions of Section 6a of Article 8307, V.A.C.S., which provides:

'Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employe may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. If compensation be claimed under this law by the injured employe or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employe in so far as may be necessary any may enforce in the name of the injured employee or of his legal beneficiaries or in its own name and for the joint use and benefits of said employe or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employe or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employe or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employe or his beneficiaries and the approval of the board, upon a hearing thereof.'

At the actual trial of this case, following the readings of the pleadings to the jury by plaintiff Hengst and defendant Jarbet, intervener requested the court to excuse the jury for the purpose of having read its pleadings to the court and for the purpose of dictating a stipulation into the record. The court advised intervener that withdrawing the jury would not be necessary and that he, the court, would have the pleadings read and stipulation dictated outside the hearing of the jury. The court read the pleadings himself and then the following stipulation was dictated into the record within hearing of counsel for plaintiff and defendant:

'It is stipulated the Intervenor, Texas State Highway Department's Exhibit No. 1, the facts therein stated are true, stipulated by and between the parties, and, in addition thereto, it is a breakdown of the sum represented in Intervenor's Plea in Intervention.'

Exhibit No. 1 was a breakdown of compensation and medical and hospital bills paid by intervener on behalf of Hengst as a result of the accident.

The plaintiff did not offer proof as to any of the items of expense as set out in intervener's pleading and its Exhibit No. 1, other than the $425 compensation, which had been paid by intervener.

It would have been improper and prejudicial for the intervener to have offered any evidence to the jury on the payments made to plaintiff, and error for the court to permit it to be brought directly to the jury's attention that the plaintiff was protected by insurance.

The pleadings of the intervener were addressed particularly to the court. Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811.

The plaintiff was entitled to recover, if at all, only that portion of the amount of damages sued for which is in excess of the amount of compensation paid him.

The failure of the plaintiff to plead and prove all of his injuries, cost and expenses, could not deprive the State of its full recovery. Traders & General Ins. Co. v. West Taxas Utilities Co., 140 Tex. 57, 165 S.W.2d 713; Fort Worth Lloyds v. Haygood, 151 Tex. --, 246 S.W.2d 865.

The court should have determined in one suit the entire damages, and since only a part thereof was disposed of for which the defendant was liable, we reverse the judgment and remand the cause for another trial. Hartford Accident & Indemnity Co. v. Weeks Drug Store, Tex.Civ.App., 161 S.W.2d 153 (error ref., w. o. m.); Myers v. Thomas, supra.

We do not believe that plaintiff was guilty of negligence and that such negligence was the proximate cause of his injuries as a matter of law. The conflict in the testimony of plaintiff and W. L. Patrick and the testimony of Joe Coleman, defendant's only witness, made the question of negligence of Hengst and that of Coleman, and whether such negligence was the proximate cause of plaintiff's injuries is a fact issue to be determined by the jury, and Special Issues Nos. One Two, Three and Four fairly presented such issues.

Special Issue No. One inquired of the jury if Coleman failed to keep a proper lookout for plaintiff, to which the jury answered that he failed to do so, and that such failure was the proximate cause of the accident.

In answer to Special Issue No. Three the jury found that Hengst did not fail to keep a proper lookout.

In response to Special Issue No. Five the jury found...