McAllister v. Magnolia Petroleum Co., 15050
| Decision Date | 28 November 1958 |
| Docket Number | No. 15050,15050 |
| Citation | 319 S.W.2d 411 |
| Parties | Richard McALLISTER, Appellant, v. MAGNOLIA PETROLEUM COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Mandell & Wright, Houston, for appellant.
Frank C. Bolton, Jr., Earl A. Brown, Chas. B. Wallace, Jack E. Earnest and William H. Tabb, Dallas, for appellee.
The opinion heretofore rendered in this case is withdrawn and the following opinion is substituted.
Appellant McAllister filed this suit against appellee Magnolia Petroleum Company, seeking damages and maintenance because of personal injuries alleged to have been sustained while appellant was employed as a seaman on appellee's ship, the J. C. Stephens. The trial court rendered judgment based on a jury verdict denying appellant recovery for damages either for negligence under the Jones, Act, Title 46 U.S.C.A. Sec. 688, or Maritime Law; but allowing appellant a recovery of $6,258 as maintenance.
No appeal was taken from the judgment denying appellant recovery under the Jones Act, but appeal was taken by McAllister from the court's adverse decision denying recovery under the General Maritime Law with respect to unseaworthiness. Appellee Magnolia Petroleum Company appealed from the judgment for maintenance. We affirmed the judgment against appellant denying the recovery for unseaworthiness, it being our opinion that appellant's cause of action was barred by the Texas twoyear Statute of Limitations, Vernon's Ann.Civ.St. art. 5526. We also affirmed the judgment for maintenance in favor of appellant. McAllister v. Magnolia Petroleum Company, Tex.Civ.App., 290 S.W.2d 313.
Thereafter appellant McAllister's application for a writ of certiorari was granted, 352 U.S. 1000, 77 S.Ct. 580, 1 L.Ed.2d 545, and the Supreme Court of the United States held that the Texas Statute of Limitations was not applicable with reference to appellant's cause of action for unseaworthiness under the General Maritime Law. Our judgment was therefore reversed and the cause was remanded to this Court for consideration of appellant's points alleging errors in the jury trial resulting in a judgment adverse to appellant. McAllister v. Magnolia Petroleum Company, 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272. Magnolia Petroleum Company did not seek to appeal from our decision affirming the trial court's judgment of $6,258 for maintenance. Therefore the only matters now before us have to do with the points raised by appellant in his appeal from the judgment against him in his cause of action based on unseaworthiness under the General Maritime Law.
Even this part of the appeal has been passed on by the Supreme Court of the United States, which in its opinion held that certain issues and definitions in the trial court's charge were erroneous. McAllister v. Magnolia Petroleum Company, 357 U.S. 221, 78 S.Ct. 1201 (Syllabi 8, 9 and 10), 2 L.Ed.2d 1272. See also Gulf, Colorado & Santa Fe Railway Company v. Deen, Tex., 317 S.W.2d 913, opinion by Justice Garwood. Appellant's points one through seven are suatained.
In his point number eight appellant asserts that the trial court refused to include in the damage issue the reasonable expense of operation, hospitalization and medical expense from the date of trial and in the future.
We quote part of the Special Issue No. 34, the damage issue: 'What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate Richard McAllister * * * for his reasonable and necessary doctors and hospital bills in the past, if you find there have been any in the past, and in the future, if you find there will reasonably and probably be any in the future, directly and proximately resulting from the fall, if any, of the plaintiff McAllister on the occasion in question?'
The issue as submitted seems to be too limited in that it would allow a recovery only for doctors' and hospital bills. Appellant requested and the court refused to submit an issue as to the reasonable cost of 'medical care and attention including doctors, hospitals, nurses bills and medicines that plaintiff has incurred from and after October 19, 1950, to the date of trial, and such future medical bills as may be incurred in the future and beyond the date of trial.' While it was not necessary to submit medical expenses in a separate issue, we think appellant was entitled...
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