Kothmann v. Lett

• Decision Date: 09 April 1952
• Docket Number: No. 10034,10034
• Parties: KOTHMANN v. LETT et al.
• Court: Texas Court of Appeals

Page 302

248 S.W.2d 302

KOTHMANN v. LETT et al.

No. 10034.

Court of Civil Appeals of Texas, Austin.

April 9, 1952.

Rehearing Denied April 30, 1952.

Lawrence L. Bruhl, Llano, Lee & Lee, Mason, Tom H. Davis, III, Ralph W. Yarborough, Austin, for appellant.

Alfred M. Scott, Austin, for appellees on appeal only.

HUGHES, Justice.

This writ of error appeal is by appellant, Rubin Kothmann, from a $17,900 default judgment rendered against him on April 14, 1951, in favor of appellees H. J. Lett, his wife Harriet Lett and infant daughter Larry Ann Lett for damages including damages for personal injuries sustained by them as a result of inhaling gas fumes while occupying a tourist cabin owned and operated by appellant.

The transcript shows these proceedings:

Appellees' petition was filed February 4, 1951, and named appellant and the Lone Star Gas Company as defendants.

Citation was issued for appellant February 24, 1951, which was served on March 9, 1951, and filed in the District Clerk's office on March 10, 1951.

The Lone Star Gas Company filed its answer on March 17, 1951.

On April 14, 1951, at 11 o'clock A.M., appellees filed a motion for nonsuit against the Lone Star Gas Company and for default judgment against appellant with a request for a nonjury inquiry into the issue of damages and for final judgment for the amount of damages found to be due.

At 11:45 o'clock A.M. on the same day, April 14, 1951, final judgment, covering more than two pages, was filed.

Appeal from this judgment by writ of error was perfected on August 22, 1951.

No statement of facts has been brought forward, the trial court certifying with reference thereto, as follows:

'I, Thos. C. Ferguson, Judge of the District Court of Burnet County, Texas, before whom the case of H. J. Lett, et al., vs. Rubin Kothmann, et al., was heard on the 14th day of April, 1951, certify that no court reporter was present and reported the evidence adduced by the plaintiffs at the hearing on the default judgment on April 14, 1951, and that no shorthand reporter or stenographer took down the evidence adduced by the plaintiffs at the hearing. There is not now available any official written report of the evidence.

'Signed and entered of record, and ordered recorded in the minutes, this the 25th day of August, 1951.'

Appellant's first point is that the judgment is erroneous because it allowed appellee H. J. Lett to recover damages for the deaths of his business associates, Leon Lynch and Sylvia Lynch, it not being alleged that appellees were within the class of persons entitled to sue for damages for wrongful death as provided in Article 4675, Vernon's Ann.Civ.St.

Appellant's third point is that the judgment is excessive. Our disposition of these points makes immaterial appellant's other points.

Since a default judgment admits only facts which are well pleaded and the effect of such default is to be measured by the pleadings it is essential, in determining these points, that we analyze the judgment in the light of the pleadings. 25 Tex.Jur. p. 402, et seq.

We quote from the judgment:

'* * * the court finds that the plaintiffs ought to recover their damages occasioned by reason of the premises alleged in plaintiffs' original petition herein against said defendant Rubin Kothmann who is in default; * * * and it appearing to the court that the plaintiffs have been damaged by the defendant Rubin Kothmann in the amounts hereinafter awarded and adjudged, it is therefore ordered, adjudged and decreed by the court that the plaintiff H. J. Lett, in his own behalf and in behalf of his wife, Harriett Lett, do have and recover of and from the defendant Rubin Kothmann the sum of Sixteen Thousand Nine Hundred Dollars ($16,900.00), together with interest thereon at the rate of six per cent. (6%) per annum from the date hereof until paid, * * *.

'It is further ordered, adjudged and decreed by the court that the Plaintiff H. J. Lett, as father and next friend of his minor daughter Larry Ann Lett, do have and recover for and on behalf of said minor child of and from the defendant Rubin Kothmann the further sum of One Thousand Dollars ($1000.00), together with interest thereon at the rate of six per cent. (6%) per annum from date hereof until paid, * * *.'

Appellees' petition filed February 24, 1951, alleged that on or about February 2, 1951, appellant owned and operated a tourist court in Marble Falls, Texas; that appellee, his wife and child were occupying one of the courts as tenants on said date; that such court was equipped with a gas stove which was left burning all night. That due to the court being poorly ventilated, damp and otherwise inadequately furnished and equipped that gas and gas fumes escaped from the stove, connections and pipes '* * * causing discomfort and illness of plaintiffs and each of them' and their '* * * health was seriously affected resulting in their serious illness and having to be removed to the Burnet County Hospital. * * *'

The petition further alleged:

'Plaintiffs say that by reason of said action and injury and the negligence and the carelessness of said Defendants and each of them as well as their agents, servants, and employees, they received great and serious bodily and mental injuries resulting in great pain and suffering to each of them; that Plaintiff's wife and daughter were compelled to spend considerable time in said hospital for their injuries and sickness, that the Plaintiff's wife Harriett Lett had a bad case of influenza or pneumonia and that their said daughter suffered from pneumonia and other physical and mental disturbances and that Plaintiffs and each of them still now are suffering and continuously suffer from their said injuries and illnesses. That prior to and up to the time of moving into the said tourist courts of said Defendant Rubin Kothmann as aforesaid, Plaintiffs and each of them were strong, able-bodies, healthy, normal persons; that by reason of and on account of said injuries and illnesses after being released from said hospital Plaintiff's wife and daughter have been necessarily confined to their bed and house for several days and that they are wholly unable physically...