Maywald Trailer Co. v. Perry

• Decision Date: 05 April 1951
• Docket Number: No. 12278,12278
• Citation: 238 S.W.2d 826
• Parties: MAYWALD TRAILER CO. et al. v. PERRY.
• Court: Texas Court of Appeals

Page 826

238 S.W.2d 826

MAYWALD TRAILER CO. et al. v. PERRY.

No. 12278.

Court of Civil Appeals of Texas, Galveston.

April 5, 1951.

Rehearing Denied April 26, 1951.

Myers & Fuller, Pliny V. Myers and Brann Fuller, all of Houston, for appellants.

Allen, Smith, Neal & Lehmann and Claude T. Allen, all of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee Clarence D. Perry for the recovery of damages alleged to have been sustained by him as a result of the negligence of appellant J. A. Maywald, doing business as Maywald Trailer Company, by whom he was then employed in the handling of certain loading equipment which caused him serious bodily injuries.

A default judgment with writ of inquiry to ascertain the amount of his damages was entered in appellee's favor. Later appellant filed a motion to set aside this default judgment and when this motion was overruled he requested that the writ of inquiry be heard before a jury. On the trial on the writ of inquiry, in answer to a special issue submitted, judgment was rendered awarding appellee damages in the sum of $8,500.00.

Appellant relies upon three points of assigned error. Under his first and second points of error he complains of the action of the trial court in refusing to allow him to introduce the testimony of a Dr. Giessel in reference to appellee's personal injuries and the testimony of appellant J. A. Maywald as to his observation of and conversation with appellee after his injuries.

Under his third point of error appellant contends that the verdict of the jury was excessive and contrary to the law.

Appellant takes the position that since appellee's cause of action was an unliquidated demand he was entitled, under Rule 243, Texas Rules of Civil Procedure, to have a jury hear his evidence as to the damages suffered by appellee and to assess his damages.

Rule 243, Texas Rules of Civil Procedure, has as its source Article 2157, Vernon's Annotated Civil Statutes, which it repeals. The rule provides that 'If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of inquiry awarded, and the cause entered on the jury docket.'

While the courts of this State have not, so far as we are advised, spoken upon the precise facts here involved, the questions here presented have, we think, been decided by the courts of other jurisdictions and may be determined by established principles of law.

It is undisputed in the record that appellant was properly served with citation and that the trial court had jurisdiction to hear the case, and that appellee's cause of action was unliquidated and that he was awarded a writ of inquiry at the time the default judgment was rendered in his favor. Appellee had testified that appellant had sent him to Dr. Julius Giessel for medical treatment of the injuries received by him. Appellant contended that Dr. Giessel would testify as to his examination of appellee and as to his physical condition at the time he made two examinations of him and that his testimony and that of appellant were admissible under said Rule 243, Texas Rules of Civil Procedure. Appellant contends that the jury was entitled to hear all the evidence in reference to appellee's injuries and to pass on the damages to be assessed.

In Vol. 17, Corpus Juris, at page 1049, it is said that 'Generally speaking, all evidence conforming to the pleadings and tending to show the amount of the demand or...