Krottinger v. Marchand

• Decision Date: 26 September 1952
• Docket Number: No. 15365,15365
• Citation: Krottinger v. Marchand, 252 S.W.2d 217 (Tex. Ct. App. 1952)
• Parties: KROTTINGER v. MARCHAND.
• Court: Texas Civil Court of Appeals

Page 217

252 S.W.2d 217

KROTTINGER v. MARCHAND.

No. 15365.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 26, 1952.

Rehearing Denied Oct. 31, 1952.

Dawson, Jones, Parish & Fillmore, of Wichita Falls, for appellant.

Ray Martin and Nelson & Sherrod, all of Wichita Falls, for appellee.

HALL, Chief Justice.

Stephen Marchand sued Glen Krottinger, dba A. & A. Cab Company, in a district court of Wichita County for personal injuries which he received in a traffic accident occurring between his car and one owned by said Cab Company.

Trial was to a jury and upon their answers to certain special issues submitted the trial court rendered judgment in favor of appellee Marchand and against said appellant Cab Company, for the sum of $6,850.

The statement of facts reveals that appellant's taxicab was driven into the back of appellee's car while it was stopped in line of traffic for a red light, with sufficient force to cause appellant's driver to bump his head on some part of the car. Appellee's wife, who was sitting in the front seat with him, was thrown forward against the windshield and some bottles of medicine which she had in her hands were broken by the impact. Appellee testified that his neck immediately began to hurt and he related this information to both the driver of the taxicab and its owner and the insurance adjuster.

Appellant plead, in defense to this cause of action, a release which had been executed by both appellee and his wife, in the amount of $150, releasing appellant from all claims growing out of the accident. Appellee plead in bar thereto that said release was acquired by appellant through fraud.

Appellant's point one relates to fundamental error of the trial court in submitting issues with reference to an oral agreement which varied terms of the written release and in rendering judgment for appellee based upon jury findings in answer to said issues.

In answer to said special issues, the jury found as follows: (1) Appellee and the adjuster of appellant's insurance company entered into an oral agreement in substance that if appellee would sign the release it would not become effective as a final release until the nature of appellee's personal injuries were determined. If such injuries proved to be more serious than they then thought them to be, the case would be reopened as though no release had been signed; (2) appellee relied upon such agreement; (3) he was induced to sign the release by reason of such agreement; (4) appellee's injuries later proved to be more serious; and (5) the adjuster did not in good faith intend to abide by such oral agreement.

Before a court may reverse a case based upon fundamental error, it must make its finding solely from an examination of the pleadings, the judgment and other records of the case, without the assistance of the statement of facts. While v. Glengarry Oil Co., Tex.Com.App., 156 S.W.2d 523; 3-B Tex.Jur., p. 34, sec. 683. Appellant did not attach his release to or in any way make it a part of the pleadings.

Appellant did not bring forward in his motion for new trial objections based upon the theory of law that oral evidence may not be used to vary the terms of a written instrument.

We therefore overrule his point one.

Appellant's point two is: 'The court erred in refusing to submit an issue to the jury inquiring whether or not plaintiff received an injury, because the only evidence in regard thereto came from the plaintiff himself who was an interested witness.'

In answer to certain special issues submitted pertaining to appellee's injuries, the jury found: (1) The driver of appellant's taxicab failed to keep a proper lookout; (2) such failure was negligence; (3) such negligence was the proximate cause of appellee's injuries; (4) said driver failed to apply his brakes; (5) such failure was negligence and (6) was the proximate cause of appellee's injuries; and (7) the amount of damage which would compensate appellee for his injuries which were the direct and proximate result of negligence of appellant's driver.

A portion of the trial court's instruction given in connection with the issue relating to the amount which would compensate appellee for his personal injuries is: 'In answering this issue, you will take into consideration only such injuries, pains and suffering, if any, which were the direct and proximate result of the defendant's negligence, if any, and if the injuries, if any, sustained by plaintiff in such collision only aggravated or increased an existing disorder or disease, then you will consider only the extent of the increase or aggravation of the ailment or infirmity.'

We find in appellant's exceptions to the court's charge where he objected to the submission of said special issues pertaining to injuries of appellee on the ground they assumed appellee suffered an injury. In all of the issues submitted pertaining to injury, the court used the saving clause 'if any' at the proper place where appellee's injuries were referred to, thus: 'If you have answered the foregoing special issue of the affirmative, do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the injuries, if any, to plaintiff?' Appellant nowhere made an objection to the court's charge because the trial court failed to submit an issue inquiring whether or not appellee sustained injuries as a result of the motor vehicle collision in question.

Appellant admitted that his cab ran into the rear of appellee's automobile at the time and place in question; that appellee's head was jerked back by the impact and the driver of appellant's taxicab received a cut in his forehead by striking some object in his cab as a result of the impact. Appellee testified he hit his head and hurt his neck in the collison. Dr. Hargraves, who examined appellee within a few days after the accident, testified that he was suffering from a narrowing of the intervertebral space or dislocation of a disc between the fourth and fifth cervical vertebrae, which condition, no doubt, had existed two or three years prior to the collision in question, and which was causing an arthritic condition at the time of the accident. However, he testified a jar or disturbance, such as the collision in question, could disturb this arthritic condition and cause the symptoms complained of.

Appellee also testified that his left eye bothered him to some extent after the accident and there was a difference in the condition of his eye subsequent to the accident. Dr. Adams, eye specialist, testified there was a slight dilation in the pupil of appellee's left eye; that he saw appellee on January, six days after the accident, and later saw him in March and that he had to make a change in his glasses to accommodate the dilation of the eye in question and again in November, same year. The condition described, however, was never directly connected with the alleged injury by the doctor.

Appellant offered no medical testimony contradicting in the slightest degree that appellee sustained personal injuries. However, it is thoroughly explained by appellee's doctor that he is principally relying upon subjective symptoms of appellee in determining appellee's injury, pain and suffering caused by the disturbance of his arthritic condition. Such a situation does not leave the testimony of appellee as being clear, direct and positive or free from circumstances tending to cast suspicion thereon.

The rule laid down in the case of Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908, is as follows: 'It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury. But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.' The court in that case cited with approval the holding in Springfield Fire & Marine Insurance Co. v. W'm Cameron & Co., Tex.Civ.App., 96 S.W.2d 788.

This point has given us much concern. We have finally concluded that the case should be affirmed. The trial court's charge does not assume that appellee had received an injury from the collision in question...