Roosth & Genecov Production Co. v. White

• Decision Date: 16 June 1955
• Docket Number: No. 6811,6811
• Citation: Roosth & Genecov Production Co. v. White, 281 S.W.2d 333 (Tex. Ct. App. 1955)
• Parties: ROOSTH & GENECOV PRODUCTION COMPANY, Inc., Appellant, v. Loren Lee WHITE et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 333

281 S.W.2d 333

ROOSTH & GENECOV PRODUCTION COMPANY, Inc., Appellant, v. Loren Lee WHITE et al., Appellees.

No. 6811.

Court of Civil Appeals of Texas, Texarkana.

June 16, 1955.

Rehearing Denied July 7, 1955.

Strasburger, Price, Kelton, Miller & Martin, Dallas, Waldrop & Shaw, Henderson, John D. Glass, Tyler, for appellant.

Gordon R. Wellborn, Rex Houston, William L. Ferguson, Bath & Turner, Henderson, for appellees.

FANNING, Justice.

This is a damage suit for personal injuries and is the second appeal of appellant in this cause. Judgment for plaintiff and intervener in the amount of $30,000 was affirmed by this court by opinion reported in Tex.Civ.App., 257 S.W.2d 140, which was reversed and remanded by the Supreme Court of Texas in an opinion reported in 152 Tex. 619, 262 S.W.2d 99.

In the second trial the jury found certain issues of negligence in favor of plaintiff Loren Lee White and found damages in his favor in the amount of $50,000. Judgment therefor was rendered against appellant and in favor of plaintiff and in favor of the intervener, American Automobile Insurance Company, to the extent it had paid certain workmen's compensation insurance benefits to the plaintiff. Appellant's motion for new trial was overruled and appellant has appealed.

The appellant, Roosth & Genecov Production Company, Inc., is an oil company which among other things causes its leases to be drilled, managed and produced, etc. One of its such leases was the Curbo lease in Rusk County, Texas, and in causing the drilling of Well 17 on said Curbo lease, appellant caused a fill of fresh dirt and sand to be constructed by A. R. Walker and then moved its derrick and foundation blocks with its own employees to the Curbo lease, where with the help of defendant's trucks and truck drivers, A. M. Sale, a rigbuilding contractor, erected the derrick. Immediately after the erection of the derrick a drilling crew of Carter-Jones Drilling Company moved onto the lease location and began the drilling of a well at the instance of appellant. Plaintiff White was a member of this drilling crew. During the drilling operations the derrick collapsed and unusually severe and serious injuries were sustained as a result thereof by plaintiff White who was 23 years of age at that time. His injuries included fractures of the left thigh, left humerus, left shoulder bone causing paralysis in his left arm, causing it to shrink in size and his left hand to be deformed, and a fracture of the right femur. There was testimony to the effect that he had sustained a serious brain injury, that he was required to stay in bed about one year after the injuries, that he was totally and permanently disabled, and medical testimony to the further effect that such condition was permanent and static as to any further recovery. There was also testimony to the effect that the doctor, hospital and medical bills during the first 20 months after his injuries were in excess of $5,000.

Plaintiff and intervener sued defendant for the sum of $224.862.80. The jury awarded damages in the amount of $50,000. The court in its judgment apportioned the sum of $12,661.00 from this judgment in favor of intervener, American Automobile Insurance Company, who had paid workmen's compensation insurance in that amount to plaintiff White. The plaintiff White had a life expectancy of 43.75 years under the record and prior to and at the time of the injury earned from $75 to $100 per week and had an income from $3,000 to $4,000 per year. There is no point presented by appellant that the verdict of the jury was excessive.

On the issues of negligence and proximate cause, the jury found that defendant furnished a southeast corner foundation block of irregular dimensions and thickness; defendant had knowledge of this condition; the furnishing of such block was negligence and was a proximate cause of plaintiff's injuries; that defendant caused the southeast corner foundation block of the derrick to be placed on a soft, sandy fill; that defendant had knowledge that the block was so placed; that such action was negligence and a proximate cause of plaintiff's injuries; that the derrick was rusty when furnished by defendant; that it was not rusty to the extent that it would not have been furnished by a person of ordinary prudence; that defendant failed to properly inspect the derrick; that such failure was negligence but was not a proximate cause of plaintiff's injuries.

Grounded upon the jury's findings of negligence and proximate cause with respect to the furnishing of a corner block of irregular dimensions and thickness and the placing of a corner foundation block in a soft, Sandy fill, and defendant's knowledge thereof, as above shown, the court entered judgment for plaintiff and intervener for the amount of damages found by the jury as above shown.

Appellant by its 21st point contends that the verdict of the jury finding appellant to be guilty of negligence proximately causing plaintiff's injuries, is so contrary to the overwhelming preponderance of the evidence as to be clearly wrong, etc. We have carefully examined the statement of facts, which with the exhibits contains 906 pages, and we think the jury's findings of negligence and proximate cause against appellant find ample support in the evidence. We think this points is without merit and same is overruled.

Appellant contends by its 1st, 2nd, 3rd and 4th points (in essence) that insurance was wrongfully injected into the case to its harm by the testimony of plaintiff's witnesses Dr. Shipp and Dr. Sueh; that the court erred in not sustaining appellant's motion for mistrial by reason thereof; that the court erred in not permitting appellant to show that the insurance company examination referred to by Dr. Shipp was one made by intervener and not by any one connected with appellant and that the court erred in not permitting appellant to show that Dr. Sueh's medical bill was paid by intervener insurance company and not by any one connected with appellant. Dr. Sueh, who testified before Dr. Shipp, testified on direct examination as follows 'Q. Now, doctor, do you recall what the amount of you bill was in this case? A. I think it was $125.00.

'Q. Has that bill been paid by this boy or someone in his behalf, doctor? A. Paid by the company.'

Appellant made no objection to this testimony when it was given and at no time requested the trial court to instruct the jury to not consider. Later, however, appellant moved for mistrial by reason of this evidence and the testimony of Dr. Shipp hereinafter related, and also moved that it be permitted to show that intervener paid Dr. Sueh's bill and that no one connected with appellant paid it, which motions were overruled by the trial court.

Dr. Shipp, a witness for plaintiff, after he had been vigorously cross-examined by appellant's counsel (we here respectfully refer to the record for a full examination of the cross-examination of Dr. Shipp by appellant's counsel wherein Dr. Shipp was questioned with respect to whether he was complying with 'medical ethics' in his acceptance of White as a medical patient who had been treated by other doctors and as to whether attorney Wellborn had caused White to be examined by Shipp, etc.), on such cross-examination gave the following testimony, the underlined portion being the testimony complained of by appellant, towit:

'Q. When Mr. Wellborn got you in the case did he send you over the time to Tyler on the examination of this young man by Dr. Willingham? A. I went to his office because the insurance company wanted us to examine him jointly.

'Q. Didn't Mr. Wellborn send you over to Tyler to examine him with Dr. Willingham? A. He didn't sent me anywhere, I volunteered, that boy is my client at that time.

'Q. Mr. Wellborn didn't know anything about it? A. Yes, he knew about it.'

The record does not reveal that the appellant objected to the complained-of answer of Dr. Shipp when it was given nor does it reveal that appellant then requested the trial court to instruct the jury to not consider such answer. However after Dr. Shipp's testimony was completed appellant called attention of the trial court to the complained-of testimony of Dr. Sueh and Dr. Shipp and moved first, that it be allowed to prove that Dr. Sueh had been paid by intervener and that the insurance examination in Tyler involved intervener and not appellant, etc., and in the alternative moved for a mistrial because of such injection of insurance, and in that connection also introduced in evidence the examination of Dr. Shipp in the former trial, where he was asked a similar question and did not give an answer similar to the one complained of, etc. (It will also be noted that appellant had been prevented by motion of appellee and ruling of the court thereon to the effect that appellant could not bring out proof with reference to the fact that intervener had paid workmen's compensation insurance to appellee.) Later appellant made a somewhat similar motion, where it also asked for a mistrial and specifically stated that the matter could not be cured by an instruction from the court, and also again requested permission to introduce the evidence they had previously requested. From this motion, as well as from a statement of appellant's counsel in the record, it is clear that appellant did not desire and would have objected to any instruction of the court to the jury to not consider the answers complained of and it is also without dispute in the record that appellant at no time ever requested the court to instruct the jury to not consider the answer complained. of.

The defendant-appellant itself very directly injected insurance into the record (prior to the testimony of Dr. Sueh and Dr. Shipp complained of) and is the only one who proved that any particular party was protected by insurance, and did this when it introduced in evidence (by the first witness in the trial, A. S. Genecov President of appe...