McAlister v. Miller
| Decision Date | 22 April 1943 |
| Docket Number | No. 4295.,4295. |
| Citation | 173 S.W.2d 339 |
| Parties | McALISTER et al. v. MILLER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Ector County; Cecil C. Collings, Judge.
Action by A. E. Miller against O. H. McAlister and others for personal injuries sustained by plaintiff when defendant's truck backed into a tank which plaintiff was assisting others in loading on the truck. From a judgment for plaintiff entered on verdict of jury, defendants appeal.
Reversed and remanded.
W. W. James, of Odessa (Robert B. Holland, of Dallas, and Strasburger, Price, Holland, Kelton and Miller, of Dallas, of counsel), for appellants.
Moss & Stowe and Paul Moss, all of Odessa, for appellee.
McGILL, Special Commissioner.
This is an appeal from a judgment of the District Court of Ector County, Seventieth Judicial District. The suit was brought by appellee to recover damages for personal injuries sustained by him when a truck belonging to appellant McAlister and operated by his employee, appellant Edwards, was backed into a gasoline butane tank which appellee was assisting Edwards in loading on the truck. He also sought to recover necessary medical and hospital expenses.
The accident occurred on July 26, 1941. The truck was equipped with a winch, with winch line and hook. Appellee, after the driver had stopped or "spotted" the truck within three or four feet of the tank attempted to connect the winch line to the tank. He stooped over to fasten the hook on the winch line to the cross bar on the tank's skid rails, when the driver backed the truck and pinned him against the tank, inflicting serious injuries.
The case was tried with a jury, which returned findings to special issues submitted. Appellants moved for a mistrial based upon conflicts in the jury's findings. The court overruled this motion and granted appellee's motion to disregard the findings on certain of the special issues and to render judgment for him. Judgment was accordingly rendered for appellee for $5,500, the amount found by the jury required to compensate him for his injuries and expenses, with interest and costs.
Appellants have presented thirteen points on which they rely for a reversal.
The parties will be hereafter referred to as "plaintiff" and "defendants," as they were designated in the trial court.
The first point relates to the court's failure to sustain defendants' exception to a portion of plaintiff's pleading, and the second point deals with the court's failure to sustain defendants' objection to the admission of testimony.
Plaintiff alleged: "Plaintiff at the time of said injuries was an experienced trucker, able bodied and in good health, and pursued the business of trucking, (and by furnishing his own truck and driving the same earned on the average of $2.50 per hour, while so using and driving such truck and was able to do hard manual labor, and that his said services were well and reasonably worth that much), and that he would have continued to earn that much to this time and for a long time in the future; the said injuries have rendered plaintiff unable to pursue his said vocation or to do any manual labor, and his said injuries are permanent and incurable, on account of which, plaintiff has lost his said earnings." (Parenthesis ours.)
Defendants specially excepted to that portion of the above allegations in parenthesis, "because the same is prejudicial in that it is not the measure of damages and defendants are not responsible for any loss of plaintiff's capital investment and plaintiff's truck was not damaged and is a part of his capital investment and a part of his equipment used in the truck business."
The exception was overruled.
Plaintiff testified that he was a trucking contractor; had been engaged in that business for twenty-three years, and was engaged in it at Odessa, Texas, on July 26, 1941; that he had two trucks and drove one of them himself. Over objection of defendants he was then permitted to testify that he worked by the hour and received as compensation as a trucker $2.50 per hour with truck and driver, and $3 an hour with truck and "swamper." The action of the court in overruling the exception to the pleading and in admitting this testimony is the basis for the first and second points here presented.
We think these points are without merit. It is true that neither the pleading nor admitted testimony constitutes the measure of plaintiff's damages. But plaintiff claimed damages by reason of his injuries for loss of earnings by being rendered unable to pursue his vocation as a trucker, and for permanent impairment of his ability to earn money.
In El Paso Electric R. Co. v. Murphy, 49 Tex.Civ.App. 586, 109 S.W. 489, writ denied, it was held that the evidence of "profits" which represent the net gain made from an investment or from the transaction of some business, though not admissible for the purpose of proving "earnings" which are the fruit or reward of labor, the price of services performed, yet such evidence is admissible as tending to show possession of business qualities from which the value of "earning capacity" may be deduced.
And in Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777 at page 780, the court said:
This rule was adhered to in Miller v. Hooper, Tex.Civ.App., 94 S.W.2d 230. Exhaustive annotations on this subject may be found in 9 A.L.R. 510, 27 A.L.R. 430, 63 A.L.R. 142, and 122 A.L.R. 297, from which it appears that there is some conflict of authority on this question. However, we regard the rule in this State as well established. If evidence of "profits" of a business such as plaintiff's is admissible to show possession of business qualities from which the value of "earning capacity" may be deduced, certainly pleading and testimony essential to arrive at such "profits" are proper. The first step necessary to show such "profits" under the facts of this case would be a showing as to the price received for a truck and driver, and since it was shown that a "swamper" or helper was also sometimes furnished, it was essential, in arriving at "profits," to show the price received for truck with driver and "swamper." The trouble with this testimony is not that it was inadmissible, but that it does not go far enough to establish a reasonable basis on which the jury could arrive at any sum as damages for lost earnings, as we shall show in discussion of the third and fourth points. We overrule the first and second points.
The third and fourth points complain of that portion of...
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