Kirby Lumber Co. v. Chambers

• Decision Date: 12 February 1906
• Citation: Kirby Lumber Co. v. Chambers, 95 S.W. 607, 41 Tex.Civ.App. 632 (Tex. App. 1906)
• Parties: KIRBY LUMBER CO. v. CHAMBERS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

95 S.W. 607

KIRBY LUMBER CO. v. CHAMBERS et al.^*

Court of Civil Appeals of Texas.

February 12, 1906.

Rehearing Denied March 29, 1906.

Appeal from District Court, Jefferson County; A. T. Watts, Judge.

Action by Nora J. Chambers for herself and as next friend of Era N. Chambers against the Kirby Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Andrews, Ball & Streetman, O'Brien, John & O'Brien, and Oliver J. Todd, for appellant. Blain, Howth & Adams, for appellees.

REESE, J.

Mrs. Nora J. Chambers, widow of Fred E. Chambers, deceased, for herself and as next friend for their minor child, Era N. Chambers, sued the Kirby Lumber Company to recover damages for the death of said Fred E. Chambers, alleged to have been caused by the negligence of the defendant company. Mrs. Cynthia Chambers, mother of the deceased, intervened, setting up her claim also to damages. The case was tried before a jury, who returned a verdict for the plaintiffs for $10,000, divided as follows: To the widow and child, $4,925 each, and to the mother, $150. Motion for new trial having been overruled, the defendant appeals.

It was alleged in the petition that appellant company was a corporation whose main business was the manufacture of lumber, and that in connection with such business it owns and operates a tram railway in and through Jefferson county, Tex.; that the said Fred E. Chambers was in the employ of the company as yard boss; and that, while engaged in the performance of his duties as such on July 20, 1903, he was killed by the negligence of defendant. It is further alleged that thereafter, on July 27, 1903, defendant sent one D. E. Chapin, its agent, to Muscatine, Iowa, where the plaintiffs were at the time, with full power and authority to compromise and settle the claim of the said Nora J. Chambers against the company growing out of the death of the deceased Chambers, and that in pursuance of said authority a settlement and compromise were made whereby Mrs. Chambers agreed to accept in full settlement of her said claim $5,000, for which amount the said Chapin gave her a draft, signed by himself, on Joe H. Eagle of Houston, Tex., for said amount, and she in consideration thereof executed a release to the appellant company of all claims for damages as aforesaid. The said Chapin was city sales agent of the company at Beaumont, and he signed the draft, "D. E. Chapin, C. S. A." Joe H. Eagle was the attorney for the company and head of the claim department. The draft was drawn on Eagle, care of the Kirby Lumber Company. It is alleged that the draft was not paid. Mrs. Chambers seeks to recover the amount of this draft as her damages, and in the alternative she sues to recover damages for the death of her said husband, alleged to be $12,500, and also as next friend of her daughter to recover the same amount as damages, alleging substantially that her husband had been killed while riding on the footboard attached to the engine then being used and operated by appellant, and while engaged in the performance of his duties as yard boss in appellant's lumber yard at Beaumont. It is alleged that his duties were such as to render it necessary and proper for deceased to ride on the footboard in their due and expeditious performance, and that while so riding he was suddenly thrown from the step or footboard and dragged along the ground causing his death; the immediate cause of the action being that the footboard caught on the plank walk of the street by the side of the track while the engine was passing over a low joint in the rails. It was also alleged that the engine was old, rickety, and out of repair, the tires and the flanges of the wheels worn, and the journals and journal boxes old and worn, by reason of which there was a lateral motion of several inches, which, when the engine struck the low joint, caused it to careen over towards the plank sidewalk and causing the track to slide, and thus contributing to the accident and consequent injury. It is charged that the appellant was negligent in the matter of the defective engine and the defective track, and the injuries and consequent death of the said Fred E. Chambers were the proximate result of such negligence. Defendant pleaded, in abatement to the action, that there was a misjoinder of parties and causes of action arising from the joining in this action the claim based upon the draft with the action for damages as pleaded, and answered further by general demurrer, general denial, and numerous special exceptions and special pleas in bar, including pleas of contributory negligence and assumed risk. The nature of said special exceptions and pleas, so far as is necessary to be referred to, will be hereinafter shown in the consideration of assignments of error based thereon.

We shall not attempt to discuss each of fifty-three assignments of error presented and urged in appellant's brief. In the manner of presenting many of these assignments there has been such a total disregard of the rules that they will not, and in fact, in justice to appellees, ought not, to be considered. The rule most conspicuously violated is rule 31 (67 S. W. xvi), requiring that to each proposition there shall be subjoined "a brief statement in substance of such proceedings, or parts thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record." This requirement is not answered by a mere reference to the transcript without any statement, especially in a transcript which contains 280 pages. It is further to be objected to the brief that, while the numbers of the assignments of error, as given in the record, are adhered to in the brief, there is no attempt to present them consecutively. Rule 29 (67 S. W. xv).

Appellant pleaded in abatement the misjoinder of parties and causes of action, which plea was overruled by the court, and the evidence in support of the claim of Mrs. Chambers upon the draft was introduced over objection of appellant. However, when all of the evidence upon this branch of the case had been introduced, and it appeared therefrom that Chapin had executed an agreement, upon the demand of Mrs. Chambers, that if the draft was not paid on presentation the release was to be withdrawn, and Mrs. Chambers restored to her right of action for damages, the court withdrew from the jury the consideration of this branch of the case, and in its charge also expressly instructed them that the matter of the settlement and the draft was not an issue before them, and that all of the evidence upon that issue was withdrawn and must not be considered. There was no error, in the first place, in overruling appellant's plea of misjoinder of parties and causes of action. Under our system of pleading, Mrs. Chambers might properly seek to recover on the draft, and, in the event of denial of her right to such recovery, to recover on her original cause of action. The matters so urged grew out of the same transaction, to wit, the alleged negligent killing of her husband. Neither was it improper to join also in the same suit the claim of the daughter for damages. The mother's claim came in by plea in intervention. Appellant complains that the effect of this was to get before the jury the evidence of the alleged compromise, and insists that the suit upon the draft was injected into the petition for this purpose. There is nothing in the record that tends to support such a charge. The evidence was connected with the execution of this draft and was properly introduced to support the claim of Mrs. Chambers thereon. That claim, and the evidence in support thereof, having been eliminated by the verbal directions and written charge of the court, it cannot be assumed that this evidence was further considered by the jury. If appellant's argument is sound, it would result that two causes of action, which might otherwise properly be joined, could not be so joined if any part of the evidence admissible to support one of them was not admissible as to the other, and might, if considered, influence the verdict of the jury as to the other. We cannot agree to this contention. The whole matter of the alleged settlement and the draft having been withdrawn from the jury, it is not necessary further to consider the various assignments of error based upon this branch of the case.

It is assigned as error that "the court erred in overruling defendant's general demurrer." This assignment stands alone without a proposition, and for statement appellant refers to the statement under the third assignment, which refers to the release given in connection with the draft as a bar to the right of Mrs. Chambers to recover upon her cause of action for damages. The petition shows that the release was executed in connection with the draft, and that it could not be urged against the alternative remedy sought by Mrs. Chambers. No other ground is urged in support of the general demurrer in the brief, and there was no error in overruling it. This point is also urged by special exception, which was also properly overruled.

Appellant presented a motion to suppress the deposition of B. L. Guinn, a witness for appellee, which was overruled, and which ruling is assigned as error. The motion was based upon the failure of the witness to answer certain cross-interrogatories and the evasive answers to others. The statement accompanying the assignment refers to the motion which is simply to the effect that the witness had refused to answer or evasively answer cross-interrogatories numbered 13, 13a, 13b, 14, 15, 26a, 30, 36 and 37. The statement refers to the witness' testimony as a whole, without pointing out any particular part of it; the testimony covering, as shown by the reference, 27 pages of the record and containing the further statement that the said cross-interrogatories and answers thereto are found on pages 31 and 34 of the record. The bill of...