Mitchell v. Dillingham
| Decision Date | 20 December 1929 |
| Docket Number | (No. 646.) |
| Citation | 22 S.W.2d 971 |
| Parties | MITCHELL et ux. v. DILLINGHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Taylor County; W. R. Chapman, Judge.
Action by W. E. Mitchell and wife against O. D. Dillingham. Judgment for defendant, and plaintiffs appeal. Affirmed.
Grisham Bros., of Eastland, and Scarborough, Ely, Brown & King and R. C. Grisham, all of Abilene, for appellants.
Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellee.
Appellants, W. E. Mitchell and wife, Mary E. Mitchell, instituted this suit against appellee, O. D. Dillingham, for damages suffered by them on account of the death of their minor son, Verner E. Mitchell, who was alleged to have met his death on account of the negligence of the appellee. Their son was an employee of the Texas Produce Company at Ranger. Appellee furnished natural gas for use in the refrigeration plant of the produce company and also furnished the connections used in supplying the gas. Appellants' son met his death by reason of an explosion of this gas, and the basis of appellee's liability was his alleged negligence in permitting a leak to occur. The Texas Produce Company provided Workmen's Compensation insurance for its employees, and appellants received $5,300, less $580 paid for attorneys' fees, as compensation under the Workmen's Compensation Law. The instant suit was instituted against a third person, not the employer of the deceased, and is controlled by the provisions of article 8307, § 6a, R. S. 1925. The issues raised by the pleadings and evidence were submitted by the court to a jury in the form of special issues and, by the jury's answers, the negligence of appellee was found to be the proximate cause of the death of Verner E. Mitchell. The issues of contributory negligence were answered in such manner as to absolve the deceased from any negligent act contributing to his injuries and death. In short, the answers of the jury to the several issues were all consistent with each other, and established a case of liability against appellee for the damages suffered by appellants. The amount of damages found by the jury was $1,800. Since the facts disclosed that $5,300 had been paid as compensation on account of the said loss, the trial court, crediting the amount found by the jury with the amount of compensation theretofore paid, rendered judgment that appellants take nothing by their suit. The compensation insurer did not intervene in the suit.
Four propositions are briefed in this court. The first proposition complains that the judgment does not conform to the verdict, in that the jury found that appellants suffered damages in the amount of $1,800 and the judgment was that they take nothing by their suit. The second proposition presents that it was error to permit the fact that appellants had collected compensation insurance to go before the jury. The third proposition presents that it was fundamental error for the court to render judgment against appellants because: (1) The compensation insurer was not a party to the suit; (2) its action against the third party was barred by limitation; (3) it was shown that the third party, appellee, had no pecuniary interest in the compensation insurance; and (4) appellee did not plead that he was either liable to the compensation insurer, or that he had paid same. The fourth proposition presents a question of the admissibility of evidence, which will be stated more fully hereinafter.
The first three propositions may be considered together. They involve the interpretation of the Workmen's Compensation Law, part 2, art. 8307, § 6a. As observed in some of the opinions construing this article, it is difficult to determine its exact meaning. Were it before us as an original proposition, we would undertake to analyze it and give it our interpretation; but it has many times been construed, and a further discussion or construction thereof is unnecessary. The following conclusions are deduced from the authorities: (1) The appellants had the right under this article to institute and maintain this suit, although the compensation insurer was not a party thereto. (2) Their right to any recovery, however, is limited to such damages, if any, as they suffered in excess of the amount of compensation insurance collected by them. (3) Since no cause of action existed except for such excess, it was proper for appellee to plead and prove the amount of compensation insurance collected. (4) It was the duty of the court, in rendering judgment, to deduct such amount from the amount of damages found by the jury. (5) Since, in the instant case, the total amount of...
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