Permian Mud Service, Inc. v. Sipes

• Decision Date: 09 September 1960
• Docket Number: No. 3555,3555
• Citation: 357 S.W.2d 803
• Parties: PERMIAN MUD SERVICE, INC. et al., Appellants, v. Maggie SIPES, Appellee.
• Court: Texas Court of Appeals

Page 803

357 S.W.2d 803

PERMIAN MUD SERVICE, INC. et al., Appellants, v. Maggie SIPES, Appellee.

No. 3555.

Court of Civil Appeals of Texas, Eastland.

Sept. 9, 1960.

Rehearing Denied Oct. 7, 1960.

Crenshaw, Dupree & Milam, Lubbock, for appellants.

Scarborough, Black & Tarpley, Wagstaff, Harwell, Alvis & Pope, Abilene, for appellee.

GRISSOM, Chief Justice.

On December the 22nd, 1958, there was a collision of an automobile driven by Steve Boone, an employee of Permian Mud Service, Inc., then on a mission for his employer, with a 'pickup' truck driven by Calvin Sipes, in which Mrs. Sipes was riding. The accident happened on a farm to market road in the country. Both Mr. & Mrs. Sipes were injured and Mr. Sipes eventually died as a result of the accident. The Fidelity and Casualty Company of New York, the workmen's compensation carrier for the employer of Mr. Sipes, paid Mrs. Sipes $9,928.16 compensation as a result of the injury and death of her husband. After the death of her husband, Mrs. Sipes sued Perminan and Boone for the damages sustained by reason of her injuries in the collision. She did not sue for damages she suffered by reason of the injury and death of her husband. Said insurance company filed 'Plaintiff's First Supplemental Petition', in the name of Mrs. Sipes, seeking to recover from Permian and Boone $11,172.00 for the injury and death of Mr. Sipes. The insurance company at the same time intervened in its own name, alleging, that, as the insurance carrier for Mr. Sipes' employer, it had paid Mr. Sipes $9,928.16, which it sought to recover out of any amount received by Mrs. Sipes for the injury and death of her husband.

Mrs. Sipes filed a motion for a 'separate trial', under Rules of Civil Procedure 174(b), of her claim for damages (filed by said insurer in her name) by reason of the injury and death of her husband. The court sustained said motion and ordered separate trials of that claim and Mrs. Sipes' claim for her own injuries. The suit for her own injuries was tried first.

Upon a trial of Mrs Sipes' claim based on her own injuries, a jury found that (1) Boone failed to keep a proper lookout, which was (2) a proximate cause of the collision; that (3) Boone was driving at a high and dangerous rate of speed, which was (4) negligence and (5) a proximate cause of the collision and that (6) $26,000.00 would compensate Mrs. Sipes for her injuries.

The jury also found that (7) Mr. Sipes did not fail to keep a proper lookout; it found that (9) he did fail to yield to Boone one-half of the main traveled part of the road, but that (10) this was not negligence. It did not answer the conditionally submitted issue of proximate cause in connection with issues 9 and 10. It found that (12) Mr. Sipes was driving on his left-hand side of the center of the paved road, but that (13) this was not negligence. It did not answer the conditionally submitted issue of proximate cause relative to issues 12 and 13. Based on said findings, the court rendered judgment for Mrs. Sipes against Permian and Boone for $26,000.00. The defendants have appealed.

The plaintiff having moved for and the court having ordered a 'separate trial' of Mrs. Sipes' claim for her own injuries and her claim based on her husband's injury and death not having been tried, we are first confronted with the question whether the judgment for damages by reason of Mrs. Sipes' own injuries, rendered in such a separate trial, is a final judgment, or whether it is interlocutory and no final judgment can be rendered and, therefore, no appeal had until after a trial of her claim based on the injury and death of her husband. The appellants, Permian and Boone, assert some doubt of the finality of the judgment, but, because of the uncertainty of the law, dared not fail to appeal. The Insurance company in an able brief suggests that since Mrs. Sipes' motion and the order for a separate trial were expressly based on R.C.P. 174(b), instead of R.C.P. 41, which provides for a 'severance', there being neither motion nor order for a 'severance' by that name, that the judgment rendered was not final and Boone and Permian have prematurely attempted to appeal.

One material phase of the question as to the finality of said judgment has been definitely determined. There can be no severance by implication. There must be an order for a severance in order that a final, appealable judgment may be rendered. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76; Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199, (Writ Ref.); Palmer v. D.O.K.K. Benevolent & Ins. Ass'n, 160 Tex. 513, 334 S.W.2d 149; Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173.

There can be no doubt but that Mrs. Sipes' claim by reason of her own injuries and her claim for damages based on the injury and death of her husband are severable causes of action. In Watson v. Watson, Tex.Civ.App., 270 S.W.2d 298, an order for a 'separate trial', expressly based on R.C.P. 174(b), instead of R.C.P. 41, identical in all material respects with the order entered in this case, was held to be an order for a 'severance' of the causes of action there asserted. The judgment entered in a separate trial of one of the causes of action was considered final and appealable. The judgment rendered in a separate trial of one of the causes of action was affirmed by the Court of Civil Appeals, 339 S.W.2d 81. An application for a writ of error was refused by our Supreme Court, with the notation 'R.N.R.E'. It the judgment rendered on one of the two causes of action asserted by the plaintiff in that case, under an order for a 'separate trial', expressly based on R.C.P. 174(b), that cannot be distinguished from the order in this case, was not final and appealable the Court of Civil Appeals could not have affirmed the judgment and our Supreme Court could not have refused a writ. They would have been required to dismiss the appeal for want of jurisdiction, regardless of whether the error was assigned. We, therefore, conclude that our Supreme Court has held, in effect, that the present judgment is final and, hence, appealable. That conclusion finds support in the following decisions. Latshaw v. Barnes, Tex.Civ.App., 170 S.W.2d 531; Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, (Writ Ref.); Meridith v. Massie, Tex.Civ.App., 173 S.W.2d 799, (Writ Ref.); Lydick v. Fischer, 5 Cir., 135 F.2d 983. Also see 36 Tex.Jur. 339. We hold that the judgment rendered on Mrs. Sipes' severable cause of action for her own personal injuries is final and that we have jurisdiction of the appeal.

The substance of Boone's and Permian's points is that the court erred in overruling their motions for judgment and for judgment non obstante veredicto because it was undisputed, and the jury found, that Sipes drove on his left side of the paved roadway and failed to yield one-half to Boone and, there being no evidence of circumstances excusing such conduct, Sipes' driving on the wrong side was negligence and proximate cause of the collision as a matter of law. They...