Marsh v. Williams

• Citation: 154 S.W.2d 201
• Decision Date: 28 July 1941
• Docket Number: No. 3895.,3895.
• Parties: MARSH v. WILLIAMS.
• Court: Texas Court of Appeals

154 S.W.2d 201

MARSH v. WILLIAMS.

No. 3895.

Court of Civil Appeals of Texas. Beaumont.

July 28, 1941.

Rehearing Denied September 17, 1941.

Appeal from District Court, Special Ninth District, Polk County; W. B. Browder, Judge.

Action by Mrs. Maggie Williams against Mrs. Ada Marsh for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Lightfoot, Robertson & Gano, of Fort Worth, and M. M. Feagin, of Livingston, for appellant.

Campbell & Foreman, of Livingston, for appellee.

COMBS, Justice.

This was an action by appellee, Mrs. Maggie Williams, against appellant, Mrs. Ada Marsh, for damages for personal injuries. The following facts found by the jury, answering special issues, indicate the nature of the suit: On the 23rd day of June, 1940, appellee "accompanied" appellant to Liberty, riding with appellant in her automobile, which appellant drove. Driving at a rate of speed in excess of 45 miles per hour, appellant turned her automobile over, injuring appellee. The rate of speed at which she was driving was negligence and a proximate cause "of the overturning of the car." Appellant failed to keep her car under proper control, which was negligence and a proximate cause "of the overturning of the said car." The overturning of the car was not the result of an unavoidable accident. Appellee was not guilty of any of the acts of contributory negligence charged against her. "On the occasion in question" appellee was not appellant's guest, but prior to the 23rd day of June, 1940, had been employed by appellant, which employment extended to and existed on the 23rd day of June, 1940. On this trip to Liberty appellee accompanied appellant "as one of the duties of her employment," and "was acting in the scope of her employment" in accompanying appellant "on the trip to Liberty on June 23rd, 1940." The jury assessed appellee's damages for her personal injuries at the sum of $7,500, and the parties agreed that she had suffered additional damages in the sum of $229.75. From the judgment against her in the sum of $7,729.75, rendered on the verdict of the jury, and the agreement of the parties, appellant duly prosecuted her appeal to this court.

(1) When the case was called for trial, appellant filed her motion for continuance. At that time she was confined to her bed at her home, and was physically unable to attend the trial and to testify as a witness; her condition was such that attendance on court would have further endangered her health. She had expected to be present at the trial and to testify. Appellee and appellant were the only two eyewitnesses to the accident. The jury found by its verdict the facts of the accident as testified to by appellee; had appellant testified she would have contradicted appellee's testimony in certain respects, but wherein she would have contradicted appellee was not shown by the motion. Appellant's physical condition was such, at the time the motion was filed, that her depositions could have been taken without further endangering her health. In her contest of the motion, appellee offered to waive all formalities and agreed that appellant's depositions could be taken and used on the trial; she further agreed that in taking the depositions the court could adjourn to appellant's bedroom, and that the deposition could be taken in the presence of the court and the jury; that offer was refused by appellant. Appellant's depositions had been previously taken and were on file in the papers of the case, and were accessible to both parties at the time the motion was filed. The motion did not detail the testimony which appellant proposed to give on the trial, and there was no showing that, if present, she would have testified to any fact not reflected by her depositions on file at that time. Appellee's original petition was filed on the 21st day of October, 1940, and the case was called for trial at the next ensuing term on the 2nd day of December, 1940, at which time it was continued to the next term on appellant's motion. At the next term the case was set by agreement for trial on the 6th day of January, 1941, and passed on appellant's motion, based on her sickness, to the 27th day of January, 1941, at which time it was tried, after the motion in issue was overruled. The motion for continuance was addressed to the sound discretion of the court, and on the facts the court did not abuse his discretion in overruling it. 9 Tex.Jur. p. 757, Sec. 83, and cases cited thereunder. Home Ins. Co. v. Williams, Tex.Civ.App., 84 S.W.2d 876, error dismissed; Art. 2168, R.C.S.; Turner v. Atlanta Nat. Bank, Tex.Civ.App., 83 S.W.2d 454; Hutson v. Cade et al., Tex.Civ.App., 217 S.W. 438; McFaddin et al. v. Oakwood Realty Co., Tex.Civ.App., 139 S.W.2d 636.

(2) We overrule the proposition that, on the allegations of her petition, appellee was as a matter of law appellant's guest. On this issue the court submitted to the jury the very issues made by appellee's petition. We also overrule the proposition that appellee's allegations, to the effect that she was appellant's employee, were insufficient in law "to show such relationship." The following quotation from the petition clearly states the relation of appellant and appellee, not as the conclusion of the pleader, but flowing from the alleged facts: "That plaintiff further shows in this connection that she was accompanying the defendant on the trip in question in the course of her employment by defendant, and at the solicitation, request and insistence of defendant, that the same was not intended as a pleasure trip on her part but was made in obedience to the insistence of defendant that she, plaintiff, may render such assistance as she could in making the trip to visit her daughter, she considering the same a part of the services for which she had been employed when accompanying the defendant on the trip in question, that her purpose in making the trip with defendant was to carry out her duties as an employee of defendant which she felt under obligations to do feeling that it was one of the services that defendant had the right to expect and demand of her, under the circumstances and which she was obligated and duty bound to perform if she expected to retain her position with defendant."

Appellee's testimony supports the verdict of the jury on the issue of her relationship to appellant. This conclusion overrules appellant's proposition that, on the undisputed evidence, appellee was appellant's guest and in her employ at the time of the accident.

The following is one element of the court's charge on appellee's measure of damages, directing the jury to consider: "The impairment of ability of plaintiff, Mrs. Maggie Williams, to earn money, if any, you find from a preponderance of the evidence, she will in all reasonable probability suffer in the future on account of the injuries, if any, received by her as a result of the overturning of said car, on the occasion in question." Appellant excepted to this element of the charge on the ground that it was without support in the pleadings, and that it was without support in the evidence, particularly of sufficient probative value "to authorize the submission of the element contained in said issue of the impairment or destruction of the ability of the plaintiff to earn money in the past or in the future, and said issue submits to the jury the issue as to the reasonable probability of plaintiff to earn money in the future, and permits the jury, without evidence, to speculate, as to such earning capacity, and to include that element along with the other elements of damage submitted in said issue." The charge has such clear support in the pleadings that it would serve no useful purpose to quote from pleadings on the point. The charge also has support in the evidence. Appellee is now living in Livingston with her daughter, Mrs. Dan Peeles; her husband is dead. On the issue as to the duties of her employment, appellee testified: "Well, just almost everything around the house, you might say; I patched quite a number of garments for her, and made quite a number of new garments, and I pieced on a new quilt until I almost had it covered, and I pieced some counterpins, and I assembled a story for a year's subscription to the Houston Post, I believe it was. This did at defendant's request." She testified further that she helped with the cooking and washing and ironing; she fixed a number of sofa cushions; she looked after the colored help; she took care of the house during appellant's absence; at the time of the accident she had been employed by appellant a little less than a month. She testified: "Well, she gave me a little money along, and she gave me my room and board, and carried me to the show, and bought me cold drinks and candy, and stuff of that kind. We didn't have any understanding; she knew I was working for my wages. I had told her I was trying to make my own way; that I had depended on Niena and Dan * * * my health was so good I felt disgusted with myself to sit in my room and have nothing to do, so I had told her I was going down there and work. I knew I could always pick up music pupils and sewing and different things. She let me use the machine to do sewing for others...